IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
Judicial Review and Appeals List
S ECI 2023 01805

VHX (a pseudonym)	Appellant	
		
v  		
		
JZT (a pseudonym)	First Respondent	
		
- and -		
		
STATE TRUSTEES LTD	Second Respondent	

---

JUDGE:	Quigley J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	27 October 2023	
DATE OF JUDGMENT:	23 November 2023	
CASE MAY BE CITED AS:	VHX v JZT	
MEDIUM NEUTRAL CITATION:	[2023] VSC 683	

---

ADMINISTRATIVE LAW — Appeal from the Victorian Civil and Administrative Tribunal — Appeal from reassessment of administration order appointing State Trustees as administrator — Application of relevant principles under the Guardianship and Administration Act 2019 by the Tribunal in reassessment application — Identification of ‘will and preferences’ of the represented person — Appointment of administrator needed — Consideration of appropriate entity as administrator — ‘will and preference’ subject to consideration of ‘as far as practicable’ — Other factors relevant including personal and social wellbeing of the represented person — No valid question of law raised — Tribunal decision upheld. 

Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148.

Guardianship and Administration Act 2019 (Vic) ss 8, 9, 30, 31, 46, 51, 52, 55, 166, 167.
---

APPEARANCES:
	Counsel	Solicitors	
For the Appellant	In person		
			
For the First Respondent	No appearance		
			
For the Second Respondent	Mr P Over	State Trustees Limited Legal Branch	

HER HONOUR:
INTRODUCTION 
1	This application brought by VHX, the son of JZT, seeks leave to appeal the orders of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) made on 5 April 2023. The orders made continued the appointment of the second respondent, State Trustees Ltd (‘State Trustees’), as administrator for his mother pursuant to the provisions of the Guardianship and Administration Act 2019 (Vic) (‘the G&A Act’). The proceeding before the Tribunal was a reassessment of the previous administration orders made. 
2	Unfortunately, the background to this matter is a tale of unhappiness and family dysfunction, with long held and deep‑seated resentments evident in the expression and behaviour of the appellant, coupled with distrust and resort to conspiracy as justification for any adverse decisions made in respect of the management of his mother’s legal and financial affairs. Sadly, this appears to motivate him to pursue a highly risky financial and legal course that he seems set upon on his mother’s behalf. The antipathy and division between the appellant and his siblings and his now deceased father is palpable, whilst his clear love, concern and care for his mother is evident. 
3	The draft Notice of Appeal identified nine questions of law which ranged widely but had as an underlying theme challenging the Tribunal’s legal analysis of the relevant legislation and its application of it in the factual circumstances the appellant sought to raise.
4	I have distilled the grounds raised and the submission of the appellant as falling into two areas. Firstly, whether the Tribunal properly took into account the represented party’s ‘will and preferences’ in making the decision to appoint the administrator. The second and associated proposition was whether the appointment of State Trustees was appropriate given the considerations in respect of appointment in the G&A Act, including the ‘will and preferences’ of the represented person. In respect of both of these issues, VHX alleges that the Tribunal misconstrued or misapplied the relevant provisions of the G&A Act and that the correct decision should have been the appointment of himself as administrator instead of State Trustees. 
5	For the reasons set out below, I am not persuaded that leave to appeal ought be granted. I am not satisfied that there is any error of law in the Tribunal’s legal analysis nor its application of the law to the relevant circumstances before it. I have concluded for the reasons set out below that the appellant’s case has no real prospect of success. 
BACKGROUND
6	VHX made an initial application to the Tribunal in 2018 to appoint himself as guardian and administrator of his mother. This application was contested by her estranged husband and two other sons who contended she needed an independent administrator. The Tribunal heard the application and appointed the Office of Public Advocate as guardian and State Trustees as her administrator. 
7	VHX subsequently made an application for reassessment of the Tribunal appointments and sought to have himself replaced as his mother’s guardian and administrator. As the guardianship order had been revoked, at the hearing he sought appointment as guardian. The Tribunal heard the applications on 21 May 2020 and made orders dismissing the applications and made an order to the effect that State Trustees continue as the administrator.
8	The Tribunal, on its own motion, conducted a further reassessment of the administration order on 10 March 2021. It made orders on that day to the effect that State Trustees continue as administrator.
9	VHX made an application for leave to appeal the Tribunal’s orders made on 15 January 2018, 21 May 2020 and 10 March 2021, pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘the VCAT Act’), including the orders appointing or continuing to appoint State Trustees as the administrator of his mother. This application for leave to appeal was refused (‘the first Supreme Court application’).
10	On 5 April 2023, the Tribunal conducted a further reassessment of the order appointing State Trustees in accordance with pt 7 div 2 of the G&A Act, with written reasons for the decision published as NJA (Guardianship) [2023] VCAT 572 (‘Reasons’) on 22 May 2023. It is from these Orders that this application for leave to appeal is made.
THE TRIBUNAL’S REASONS
11	The Tribunal’s Reasons recorded that there had been various hearings conducted on 16 May 2022, 28 September 2022 and 5 April 2023, and that it heard evidence from VHX, State Trustees, and from a solicitor on behalf of another son (who had an interest in property co‑owned by the represented person). The evidence included hearing from JZT on 16 May 2022 and 28 September 2022 but the Tribunal was unable to do so at the final hearing as JZT, whilst present in the hearing, was uncommunicative and appeared to be asleep and unable to be roused.
12	The Tribunal had reports from State Trustees about the administration and from medical practitioners about the represented person’s health and decision‑making capacity. The Tribunal found that, since 2011, JZT has had dementia causing progressively worsening cognitive impairment affecting her decision‑making capacity.
13	The Tribunal stated that the principles contained in s 8 of the G&A Act applied to the reassessment, but the principles in s 9 did not apply.
14	The Tribunal had before it a document entitled ‘What is important to you?’ that purported to include statements of what JZT wanted, the evidence from medical practitioners about her condition, and its own observations about her capacity. 
THE TRIBUNAL’S FINDINGS
15	The Tribunal found that it was JZT’s will and preferences that she be cared for by VHX and that she trusted him and that she did not want State Trustees as her administrator but wanted him to be her administrator instead. The Tribunal found that the purported statements from JZT in the document in respect of her will and preferences were reflective of the opinion of VHX as to his mother’s will and preferences. 
16	The Tribunal considered whether JZT had decision‑making capacity about her financial affairs and legal affairs and found that she did not. 
17	The Tribunal considered whether JZT needed an administrator and found that she did.
18	The Tribunal identified that the will and preferences of JZT should direct the decision as to whether an administrator should be appointed and who it should be ‘as far as practicable’ in accordance with the principles in s 8(1)(b) of the G&A Act. 
19	In considering who should be appointed as administrator, the Tribunal considered a number of matters relevant to this issue being:
(a)	VHX’s complaints about the performance of State Trustees as administrator and its responses to those complaints. 
(b)	Whether State Trustees had complied with s 55 of the G&A Act and determined while State Trustees had made errors, it had not acted dishonestly or incompetently and that it had complied sufficiently with the requirements of s 55.
(c)	Whether possible alternative trustee companies might be appropriate and found that State Trustees charged the least fees and commissions, and that a move to an alternative administrator would have serious negative financial effect on her as she had a small amount of cash in her common fund (less than $3,000).
(d)	Whether VHX should be appointed as administrator. The Tribunal found that he should not because, if he was so appointed, he would involve JZT in litigation seeking to undo property orders made by the Federal Circuit Court of Australia (‘FCA’) (in Family Law proceedings) relating to her matrimonial home and this would be futile, have negative consequences to her financially and waste her resources.
20	The Tribunal was therefore satisfied that State Trustees should be reappointed as administrator and made consequential orders to that effect.
GROUNDS OF APPEAL
21	Ground 1 alleged that the Tribunal failed to comply with the requirements of the G&A Act by not giving effect, as far as practicable, to the written and signed will and preferences of the represented person.
22	Ground 2 challenged the actions of State Trustees under s 9 of the G&A Act as to the represented person’s will and preferences and alleged that the Tribunal failed to meet the requirements of ss 166 and 167 of the G&A Act by not holding State Trustees adequately to account for failures and breaches under ss 9, 55, 57, 59 and 61 of the G&A Act.
23	Ground 3 alleged that the Tribunal and/or State Trustees failed to comply with the requirements of s 7 of the G&A Act and infringed upon the human rights of the represented person to participate in a decision that would affect her life by not giving effect, as far as practicable, to her written and signed will and preferences.
24	Ground 4 alleged that the Tribunal, in undertaking the reassessment, failed to adequately require provision of all accurate and detailed records under ss 55, 59 and 61 of the G&A Act from State Trustees in respect of all fees and charges. 
25	Ground 5 challenged early orders by another member of the Tribunal. This ground was not pursued, and only the proceeding before the Tribunal the subject of the order dated 5 April 2023 was before the Court.
26	Ground 6 made allegations against State Trustees in respect of proceedings before the FCA in respect of JZT’s matrimonial property proceedings, and it was alleged that the Tribunal failed in its obligations under the G&A Act to review the performance of State Trustees as administrator in respect of this litigation and transaction.
27	Ground 7 alleged that the Tribunal failed to comply with the requirements of the ss 166 and 167 of the G&A Act to consider whether State Trustees has complied with the requirements of s 55 and hold them appropriately and adequately accountable for failing on a number of occasions in respect of the events associated with the FCA litigation.
28	Ground 8 alleged that the Tribunal, in undertaking the reassessment, failed to adhere to the requirement that the signed will and preferences of the represented person should direct as far as practicable the decisions regarding the appointment of State Trustees. It alleged that VHX ought to be appointed administrator instead as he is given greater standing in relation to what he considers to be promoting the personal and social wellbeing of the represented person. The decision to reappoint State Trustees is likely to result in serious negative effects on her personal and social wellbeing, in particular in relation to the sale of the family home.
29	Ground 9 alleged that the Tribunal had unfairly, improperly or inappropriately impugned the honesty and integrity of VHX by denigrating the integrity of the written will and preferences of the represented person, in particular with regard to the sale of her house and the appointment of him as administrator. 
SUBMISSIONS OF THE PARTIES
30	Both VHX and State Trustees filed written submissions and orally expanded on their written submissions before the Court. 
31	VHX took the Court to parts of the family history, reiterated his distress at what he viewed to be fraudulent behaviour on behalf of his siblings and father, and railed against State Trustees and his complaints about their administration of his mother’s affairs. He was adamant that if he was appointed the administrator he wished to pursue not only reopening of the family court proceedings, but to intervene in litigation to challenge his late father’s will. VHX was highly critical of State Trustees and promoted himself as the person best placed to manage his mother’s financial and legal affairs.
32	State Trustees took the Court to the principles which it said applied to the proper construction of the G&A Act and its application by the Tribunal which led to the Orders now challenged.
RELEVANT PROVISIONS OF THE G&A Act
33	The relevant provisions the G&A Act referred to and relied upon by the parties in this proceeding are set out below:
8	 General principles
(1)	A person exercising a power, carrying out a function or performing a duty under this Act must have regard to the following principles—
(a)	a person with a disability who requires support to make decisions should be provided with practicable and appropriate support to enable the person, as far as practicable in the circumstances—
(i)	to make and participate in decisions affecting the person; and
(ii)	to express the person’s will and preferences; and
(iii)	to develop the person’s decision‑making capacity;
(b)	the will and preferences of a person with a disability should direct, as far as practicable, decisions made for that person; 
(c)	powers, functions and duties under this Act should be exercised, carried out and performed in a way which is the least restrictive of the ability of a person with a disability to decide and act as is possible in the circumstances.
(2)	In subsection (1), the reference to a person exercising a power, carrying out a function or performing a duty under this Act includes VCAT.
9 	Decision‑making principles
(1)	A person making a decision for a represented person must have regard to the following principles—
(a)	the person should give all practicable and appropriate effect to the represented person’s will and preferences, if known;
(b)	if the person is not able to determine the represented person’s will and preferences, the person should give effect as far as practicable in the circumstances to what the person believes the represented person’s will and preferences are likely to be, based on all the information available, including information obtained by consulting the represented person’s relatives, close friends and carers;
(c)	if the person is not able to determine the represented person’s likely will and preferences, the person should act in a manner which promotes the represented person’s personal and social wellbeing;
(d)	if the represented person has a companion animal, the person should act in a manner that recognises the importance of the companion animal to the represented person and any benefits the represented person obtains from the companion animal;
(e)	the represented person’s will and preferences should only be overridden if it is necessary to do so to prevent serious harm to the represented person.
(2)	In this section, represented person—
(a)	has the meaning given in section 3(1); and
(b)	includes a missing person for whom an administration (missing person) order has effect.
34	A person exercising functions and duties under the G&A Act is to have regard to the principles set out in s 8. This applies to the Tribunal explicitly by reference to s 8(2). 
35	Section 9 sets out further principles which apply to a person making a decision ‘for’ a represented person. These principles apply to a guardian or administrator who is making a decision for a represented person. They also apply to the Tribunal when it is advising an appointed decision‑maker about the use of their powers and duties, such as under s 44 where the Tribunal is empowered to give advice to a guardian, or s 64 in respect of advice to the administrator. However, they do not apply to the appointment or reassessment of an administrator.
36	The relevant provisions in respect of an appointment as a guardian or an administrator are set out in ss 30 and 31, and s 32 sets out provisions relevant to the appointment of a person suitable as a guardian or administrator: 
30	VCAT may make a guardianship order or administration order
(1)	After considering an application made under Division 1—
(a)	VCAT may make one or more of the following orders—
(i)	a guardianship order, subject to subsection (2);
(ii)	an administration order, subject to subsection (2);
(iii)	a supportive guardianship order under section 87, subject to Part 4;
(iv)	supportive administration order under section 87, subject to Part 4; or
(b)	VCAT may make no order under this Act.
Note
See sections 34(1)(f) and 36 in relation to guardianship orders and administration orders that are urgent orders.
(2)	VCAT may only make a guardianship order or an administration order under this Division if satisfied that—
(a)	because of the proposed represented person’s disability, the person does not have decision‑making capacity in relation to—
(i)	in the case of a guardianship order, the personal matter in relation to which the order is sought; or
(ii)	in the case of an administration order, the financial matter in relation to which the order is sought; and
(b)	the proposed represented person is in need of a guardian or administrator, as the case requires; and
Note
Section 31 sets out factors to consider in determining whether a person is in need of a guardian or an administrator.
(c)	the guardianship order or administration order, as the case requires, will promote the proposed represented person’s personal and social wellbeing; and
(d)	in the case of an application for an administration order for a proposed represented person who does not reside in Victoria, State Trustees has not been authorised under section 12 of the State Trustees (State Owned Company) Act 1994 to collect, manage, sell or otherwise dispose of or administer any property in Victoria in relation to which the administration order is sought.
31	Factors to consider in determining need for guardian or administrator
For the purposes of section 30(2)(b), in determining whether a person is in need of a guardian or administrator, VCAT must consider the following—
(a)	the will and preferences of the proposed represented person (so far as they can be ascertained); 
(b)	whether decisions in relation to the personal or financial matter for which the order is sought—
(i)	may more suitably be made by informal means; or
(ii)	may reasonably be made through negotiation, mediation or similar means;
(c)	the wishes of any primary carer or relative of the proposed represented person or other person with a direct interest in the application;
(d)	the desirability of preserving existing relationships that are important to the proposed represented person.
32	Persons eligible as guardians or administrators
(1)	VCAT may appoint as a guardian any individual who is of or over the age of 18 years and who consents to act as guardian if VCAT is satisfied that the individual—
(a)	will act in accordance with the duties set out in Division 4; and 
(b)	is not in a position where the individual’s interests conflict, or may conflict, with the interests of the proposed represented person; and 
(c)	is a suitable person to act as the guardian for the proposed represented person.
(2)	VCAT may appoint as an administrator any person (individual or body corporate) which, in the case of an individual, is of or over the age of 18 years and which consents to act as administrator if VCAT is satisfied that the person—
(a)	will act in accordance with the duties set out in Division 7; and 
(b)	is not in a position where the person’s interests conflict, or may conflict, with the interests of the proposed represented person; and 
(c)	is a suitable person to act as the administrator in relation to the proposed represented person; and
(d)	has sufficient expertise to make decisions about any financial matter to be specified in the administration order.
(3)	In determining whether a person is a suitable person to act as a guardian or administrator for a proposed represented person, VCAT must take into account the following—
(a)	the will and preferences of the proposed represented person (so far as they can be ascertained); 
(b)	the desirability of preserving existing relationships that are important to the proposed represented person;
(c)	the desirability of appointing a person who is a relative of the proposed represented person, or who has a personal relationship with the proposed represented person, rather than appointing a person with no such relationship;
(d)	whether the person will be available to the proposed represented person and able to meet and communicate with the proposed represented person;
(e)	whether the person will act cooperatively with any current guardian or administrator for the proposed represented person (as the case requires);
(f)	whether, in the case of an administration order, the person proposed as administrator is or was a member of VCAT as constituted for a proceeding under this Act.
(4)	VCAT may appoint as an administrator a person who was at any time a member of VCAT as constituted for a proceeding under this Act if VCAT considers that in the circumstances it is appropriate for the person to act as an administrator.
(5)	VCAT must not assume without any evidence that a proposed represented person’s relative who is proposed as the guardian or administrator—
(a)	has interests that conflict, or may conflict, with those of the proposed represented person merely because the proposed guardian or administrator is a relative of the proposed represented person; or
(b)	is not suitable to be appointed as the guardian or administrator merely because that relative disagrees with another relative of the proposed represented person about a matter pertaining to the proposed represented person.
(6)	If a statement of wishes for a future appointment was lodged under section 35, VCAT must consider that statement.
37	It can be seen from these provisions that the Tribunal can only appoint an administrator if one is needed because the proposed represented person lacks the relevant decision‑making capacity and the appointment of the administrator will promote the proposed represented person’s personal and social wellbeing. 
38	The factors to be taken into account in making a decision to appoint an administrator include the will and preferences of the proposed represented person, whether decisions can be made more informally, the wishes of the primary carer, and the desirability of preserving existing important relationships to the represented person. 
39	In respect of the eligibility of a person to be appointed as an administrator, the Tribunal is required to be satisfied of the matters set out in s 32(2) of the G&A Act and, in determining the suitability of an administrator, the Tribunal must take into account the matters set out in s 32(3), including the will and preferences of the proposed represented person (so far as they can be ascertained), the desirability of preserving existing important relationships, and the desirability of appointing a relative with whom the proposed represented person has a relationship with, as compared to someone who does not.
40	The Tribunal may make a reassessment of its own motion, or at another party’s request. Finally, the powers and duties of an administrator are set out in s 55 and the matters to which the Tribunal must consider on a reappointment are set out in ss 166 and 167 of the G&A Act. They include consideration of the compliance by the administrator in accordance with s 55.
55 	Exercise of power by administrator
An administrator—
(a)	must act in accordance with the general principles set out in section 8 and the decision‑making principles set out in section 9; and
(b)	must act as an advocate for the represented person; and
(c)	must encourage and assist the represented person to develop the person’s decision‑making capacity in relation to financial matters; and
(d)	must act in such a way so to protect the represented person from neglect, abuse or exploitation; and
(e)	must act honestly, diligently and in good faith; and
(f)	must exercise reasonable skill and care; and
(g)	must not use the position for profit unless permitted under section 175 or otherwise authorised by law; and 
(h)	must avoid acting if there is or may be a conflict of interest unless so authorised under this Act, by order of VCAT or otherwise by law; and
(i)	must not disclose confidential information gained as an administrator unless authorised to do so under the administration order or by law.
…
166	VCAT to consider role of appointed person
In the course of conducting a reassessment of an order referred to in section 159(1), VCAT must consider whether, as the case requires—
(a)	the guardian appointed at first instance has performed duties in compliance with section 41; or
(b)	the administrator appointed at first instance in an administration order has performed duties in compliance with section 55; or
(c)	the supportive guardian or supportive administrator appointed at first instance has performed duties in compliance with section 94; or
(d)	the administrator appointed at first instance in an administration (missing person) order has performed duties in compliance with section 116.
167	Order after reassessment
(1)	On completing a reassessment of an order referred to in section 159(1), VCAT may by order—
(a)	amend, vary, continue or replace the relevant order subject to any conditions or requirements it considers necessary; or 
(b)	revoke the relevant order.
(2)	If the Public Advocate is appointed as guardian for a represented person in an order of VCAT at first instance, that appointment may only be retained on reassessment if VCAT is satisfied that no other person fulfils the requirements for appointment as guardian.
ANALYSIS
41	I have identified the key issues for determination in this application as:
(a)	Whether the Tribunal properly considered the represented person’s ‘will and preferences’ in accordance with the G&A Act and made sound findings of fact in that regard.
(b)	If there was a need to appoint an administrator, what are the considerations relevant to the appointment of a particular party to that role? 
Legal principles
42	The Tribunal summarised the principles set out in s 8 of the G&A Act as follows:
(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 the 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 a 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.
43	The Tribunal correctly identified that, in conducting the reassessment, it was exercising a power under the G&A Act but was not ‘making a decision for a represented person’, so the principles in s 8 applied but not the principles in s 9. This approach is consistent with the decision of her Honour Richards J in the first Supreme Court application referred to above at [9]. In that decision Richards J determined that s 9 provides decision‑making principles for a person making a decision for the represented person, such as a guardian or administrator, but had no application in the Tribunal’s decision in the making of a reassessment of the guardianship order.
44	In my view, there was no error of law in the Tribunal’s identification of legal principles applicable to the task it had to perform in making the reassessment decision. The Tribunal considered the will and preferences of JZT both insofar as they could be ascertained, and sought to apply them as far as practicable in the circumstances on the evidence it had before it. The Tribunal’s decision in respect of the reassessment of the need for an administration order and the continuation of the appointment of State Trustees as administrator took into account, as required, JZT’s will and preference, the alternatives open, the important relationships, the views of her primary carer, and the promotion of JZT’s personal and social wellbeing. The Tribunal identified the correct legal principles and considerations relevant as required by the G&A Act.
Identification of the ‘will and preferences’ of the represented person
45	Grounds 1, 3, 8 and 9 raised issues relating to the ‘will and preferences’ of the represented person.
46	The Tribunal correctly identified that, in appointing an administrator, the Tribunal must apply the principles in s 8, including the represented person’s will and preferences, which should direct the decision ‘as far as practicable’. The represented person’s will and preferences were also identified as being relevant to the decision of the Tribunal as to whether a person needs an administrator under s 31, and whether a proposed administrator is an eligible person to be appointed under s 32(3)(a). 
47	VHX maintained that his mother’s will and preferences were that he be appointed as her administrator and that the Tribunal was obliged to appoint him given her expressed will and preferences, his relationship to her, his wishes, and the promotion of her personal and social wellbeing. VHX submitted that, given his mother’s expressed will and preferences, he be appointed her administrator and the Tribunal erred in not determining the administration order in accordance with that preference. 
48	The G&A Act does require the Tribunal to appoint an administrator in accordance with the will and preferences of the represented person. What is required is that the will and preferences must variously ‘be considered’, ‘be taken into account’ and ‘have regard to’ ss 8, 31(a) and 32(3)(a). These words have a different meaning or emphasis from ‘must give effect to’ or words which have a mandatory exhortation. In addition, there are other factors the Tribunal must also give consideration to as can be seen from the provisions of the G&A Act set out above. 
49	To assist a Tribunal member to understand the person’s will and preferences, the Tribunal had before it the document sent to the represented person and their primary carer entitled ‘What is important to you?’. It is understood that the form will often be completed by the primary carer or a family member and, in this regard, the form asks the question ‘Did anyone help you with this worksheet?’. The form provides a section for the person providing assistance to the represented person to identify themselves and acknowledge that the information provided is true and correct.
50	The Tribunal recorded that such a form, dated 9 May 2022, was completed by VHX on his mother’s behalf. The form was completed in a very detailed way, whereby questions such as ‘What is important about the major assets and debts?’ and ‘What is important for court cases or legal problems?’ were answered in detail. The Tribunal found that the answers to these questions demonstrated a high level of understanding of her financial affairs and potential legal proceedings. 
51	This observation stood in stark contrast to the other evidence before the Tribunal, including that:
(a)	whilst JZT attended the hearing, she was unable to communicate with the Tribunal member; and 
(b)	the medical evidence showed that JZT had long standing dementia that affected her decision‑making capacity and that she did not have capacity to make decisions about her financial affairs, including legal matters. 
52	The Tribunal considered the statements attributed to JZT in the completed form represented her will and preferences only insofar as she wanted to be cared for by VHX, she trusted him and she wanted him and not State Trustees as her administrator. However, the Tribunal was not persuaded that the form reflected her will and preferences in respect of her financial and legal matters but instead reflected VHX’s belief about what her will and preferences were. 
53	The evidence that was before the Tribunal consisted of the completed form, the opinion of VHX, and the Tribunal’s observations of the demeanour of the represented person.
54	In the context where JZT lacked capacity to make decisions about her financial affairs, it was open to the Tribunal to reject VHX’s written statements about how JZT purportedly wanted her financial matters and legal affairs to be managed and to form the view that these detailed answers were his beliefs about her will and preferences. 
55	The detailed directions in the completed form about her financial affairs belied the lack of capacity she had to make decisions about her financial affairs. The findings of the Tribunal on the evidence before it as to JZT’s will and preferences would only involve an error of law if it was simply not open to it on the evidence. In my view, the findings of the Tribunal were open to it and ought not be overridden on review on the basis of the submissions put before the Court. 
Applying the relevant considerations to the appointment of a particular administrator
Grounds 2, 3, 4, 5, 6 and 7
56	Grounds 2, 3, 4, 5, 6 and 7 challenged the Tribunal’s decision to reappoint State Trustees as the administrator on the reassessment. 
Need for appointment of an administrator
57	Section 30(2)(a) of the G&A Act provides that the Tribunal may only appoint an administrator for a person if it is satisfied that because of the person’s disability the person does not have decision‑making capacity. 
58	The Tribunal made reference to s 31 of the G&A Act which sets out a number of matters the Tribunal must consider in determining whether a person needs an administrator. This includes the person’s will and preferences as far as they can be ascertained, and whether decisions about relevant financial matters could be more suitably made informally or could reasonably be made by mediation or some similar method. The Tribunal must also consider the wishes of any primary carer, relative or other person with direct interest in the application, and must also consider the desirability of preserving existing relationships important to the person with a disability.
59	The Tribunal had before it a number of medical reports. As at 14 February 2020, the medical evidence was that JZT appeared to have worsened cognitively since her review in 2017. The doctor reported that she seemed to understand the plan to sell her home and it was clear that she did not wish the home to be sold because she wanted to live in the house. It was noted that she was disoriented as to place and year, and could not tell the medical practitioner her date of birth or age.
60	There was no real contest that JZT was in need of an administrator and the Tribunal was satisfied that was the case. It was also clear to the Tribunal that it would not be possible for her financial and legal affairs to be managed by any informal means, nor that she had the capacity to make a power of attorney and, without an administration order, she would be at risk that her finances would not be used for her needs. The Tribunal also found that the appointment of an administrator will not interfere with the relationships that are important to her because VHX had demonstrated that he is committed to caring for her.
61	The Tribunal also noted that VHX had made a number of applications to be appointed her administrator, thus demonstrating acceptance that the requirements of s 30(2)(a) were satisfied.
62	There is no error demonstrated in the Tribunal’s consideration of the decisions that an administrator was needed. 
63	The contest was whether State Trustees should be reappointed administrator.
Appropriate to reappoint State Trustees as administrator on reassessment under s 159 
64	In reassessing the order appointing State Trustees, the Tribunal was required to consider whether State Trustees had performed its duties in accordance with s 55 of the G&A Act.
65	As the Tribunal noted, VHX had been highly critical of State Trustees since their appointment in 2018. VHX had been in conflict with his late father and remains in conflict with his brothers. He had been highly critical of decisions made by State Trustees, in particular to a 50‑50 split of the matrimonial assets. That outcome was described by Stewart J in the FCA to be an ‘irresistible’ one. It is an outcome he refuses to accept. The Tribunal expressed the view that VHX’s views about State Trustees had influenced his mother’s views whilst accepting that her will and preferences are to have her son assist her in all aspects of life. 
66	The Tribunal did not accept that in May 2022, nor at the date the Tribunal was considering the reassessment, JZT could express her wishes about what would be involved in such complex financial or legal matters as taking legal action to try and reverse the outcome of the property settlement or the Deed of Charge or place a caveat on her property, or the fees charged by State Trustees (or as raised by VHX before me, a challenge to her late former husband’s will for part of his estate). 
67	VHX raised a number of complaints about State Trustees and, in respect of each of these, State Trustees provided a response. I have considered this part of the evidence and cannot discern any error in its assessment of it and it was a finding the Tribunal was entitled to make.
68	The Tribunal considered possible alternative administrators but rejected the alternatives on the basis that JZT’s assets are such that appointment of an alternative administrator would be financially disadvantageous to her. Again, this is a finding open to the Tribunal on the evidence before it. 
69	The Tribunal accepted that it was JZT’s will and preferences to have her son appointed as her administrator. However, the Tribunal noted that it was not bound by that stated position and that the Tribunal can only make an order if satisfied that the order will promote the represented person’s personal and social wellbeing. The Tribunal’s view was that the reappointment of State Trustees as administrator promoted personal and social wellbeing by protecting her from the consequences which would follow if VHX was appointed to that law. The Tribunal predicted that he would involve her in litigation seeking to undo the order made by the FCA and this would have negative consequences for her financially.
70	The Tribunal rejected the submissions that State Trustees acted dishonestly and incompetently. Whilst State Trustees acknowledged several errors, including incurring a penalty for late payment of rates, JZT had not been adversely affected as the error had been corrected at the administrator’s own expense. The Tribunal was satisfied that State Trustees has complied with the requirements of s 55 of the G&A Act and rejected the argument that, in not challenging the orders made by the FCA, State Trustees has failed to act as an advocate for her. The Tribunal noted that a competent administrator must make an assessment of the merits or otherwise of such a proposition and that State Trustees had determined it would be a futile waste of the represented person’s resources to mount such a claim. The Tribunal agreed with State Trustees’ assessment of the merits of making such a claim.
71	The Tribunal, in appointing an administrator, must take into account the will and preferences of a represented person (as far as that can be ascertained). The Tribunal did take into account the will and preferences of JZT and found she did want her son in that role. However, the Tribunal is not obliged to act on that will and preference to remove an administrator and replace that administrator if there is no basis to do so after taking into account the matters in s 55 of the G&A Act. 
Earlier Orders – Grounds 5 and 6
72	These grounds, which relate to earlier orders of the Tribunal, were not pursued. As was explained to VHX, the effect of the earlier orders was superseded by the reassessment order made by the Tribunal on 5 April 2023. 
73	Consequently, no further consideration of these grounds is necessary.
CONCLUSION
74	Under s 148 of the VCAT Act an appeal from the decision of the Tribunal is open, upon the grant of leave, on a question of law.
75	The appellant has not met the threshold of ‘a real prospect of success’ on the grounds he has raised.
76	I am satisfied, in reviewing the evidence before me and the reasons of the Tribunal, that the Tribunal properly considered the requirements of the G&A Act, in particular s 8 being the represented person’s will and preferences. The Tribunal was correct in its analysis that consideration of a represented person’s will and preferences is made in a context, which in this case includes a disability and impaired capacity and what might be said to be VHX’s influence and her ability to form an independent view about matters.
77	The matter before the Tribunal was a reassessment of the administration order. The Tribunal was not satisfied that there should be a variation to the existing order and set out its evidentiary findings as to that conclusion. I am of the view that the Tribunal did not make any error of law in its assessment of the application before it. 
78	I am not satisfied that the Tribunal’s decision exhibits any legal error in the principles applicable, nor their application to the relevant evidence that was before the Tribunal, and that the findings made by the Tribunal all had a legitimate evidentiary basis upon which the Tribunal could be satisfied as required by the G&A Act.
79	The application for leave to appeal will be dismissed.
80	I will provide an opportunity for the parties to make submissions on costs in writing within 14 days.  
---