VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
GUARDIANSHIP LIST	
vcat reference NO. G99238	
CATCHWORDS	
Rehearing of application in relation to enduring power of attorney, guardianship and administration – no proven breach of duties by attorney – no need established for appointment of guardian or administrator.	

PRINCIPAL	FAQ	
WHERE HELD	Melbourne 	
BEFORE	Senior Member A Smith	
HEARING TYPE	Re-hearing	
DATE OF HEARING	19 February 2024 and 5 April 2024	
DATE OF ORDER	5 April 2024	
date of written reasons	18 April 2024	
citation	FAQ (Guardianship) [2024] VCAT 356	

Orders
5 April 2024
About the application
On 19 September 2023, VCAT made a decision about an application made on 21 March 2023 about FAQ, as statement of reasons was produced on 20 November 2023.
On 13 December 2023, GTB applied for a re-hearing of the application.
VCAT orders that:
Having re-heard the application dated 21 March 2024, VCAT confirms the order made on 19 September 2023, adding the following direction to the orders.
VCAT directs the attorney as follows:
If the principal is offered an aged care placement in Town H, the attorney will promptly seek the opinion of a registered medical practitioner as to whether the principal will suffer any medical, psychological or physical risk in moving that would outweigh any social and personal benefits she might achieve by being in closer proximity to immediate family members and existing friends in Town H. When in receipt of such opinion, he will fairly evaluate whether benefits outweigh the risks in accordance with his statutory duties.
(To avoid loss of opportunity to accept any suitable placement that may be offered, the attorney is encouraged – not directed – to canvas such opinion at an earlier date and seek confirmation once the specific placement details are known).

16 April 2024
The attorney made an application for costs of the rehearing on 15 February 2024 if the application should be dismissed.
The dismissal of the application was affirmed by VCAT on 5 April 2024.
VCAT orders that:
Under section 80 of the Victorian Civil and Administrative Tribunal Act 1998:
By 30 April 2024 the attorney shall file and serve any application and submissions for costs of the rehearing.
By 14 May 2024, the applicant shall file and serve any submissions in reply.
VCAT will thereafter decide the costs application on the papers.
Submissions should address whether costs are sought from the applicant or from the principal’s estate. Estimates of likely Party-Party costs would assist VCAT in making the decision.

A. Smith
Senior Member			

APPEARANCES:		
Applicant	Ms A. Bartfeld of counsel	
Respondent	Mr. D. Easteal of counsel	

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 1986 that identifies or could lead to the identification of a party to the proceeding.
Introduction
1	In this statement of reasons, to protect the identity and confidentiality of the principal’s personal information and for consistency, I will adopt the same anonymised acronyms for the parties as were assigned in the decision of Member Cameron FAQ (Guardianship) [2023] VCAT 1276. 
History of proceedings
2	In 2023, after a two-day hearing, Member Cameron dismissed applications under Part 8 of the Powers of Attorney Act 2014 (POAA) and Part 3 of the Guardianship and Administration Act 2019 (GAA). She also authorised a conflict transaction undertaken by the attorney in relation to the principal’s vehicle. 
3	On 13 December 2023, GTB applied for a rehearing of the applications under section 122 of the POAA and section 150 of the GAA. VCAT issued directions on 15 December 2023 and the matter proceeded to a hearing before me on 19 February and 5 April 2024. 
4	The parties agreed that I could have regard to all materials on file (including transcripts of past hearings) and elected to proceed by way of submissions without seeking to cross-examine any party who submitted statements. Additionally, during the rehearing certain issues required some direct questions to the attorney. The principal spoke directly to me in relation to her will and preferences and other witnesses made brief statements. A witness, Ms Wray, CEO of the aged care facility where FAQ lives, briefly gave evidence about FAQ’s current wellbeing and answered some questions from the applicant’s representative. In accordance with directions I gave after the February hearing, the attorney and the applicant filed additional submissions and material ahead of the April hearing. 
5	The principal was present at the rehearing by videoconference. Other parties attended in person. 
6	In rehearing the applications, I have considered the matter afresh, on the basis of the evidence and submissions before me. That includes the transcript and all the written material that was before Member Cameron, the additional written material and the oral submissions made before me.
7	At the conclusion of the rehearing on 5 April 2024, I reserved my decision but agreed to produce an order as soon as possible to provide certainty to the parties, with the understanding that a statement of reasons would be produced. 
rehearing
8	Both section 127 of the POAA and section 157 of the GAA provide that, in determining a rehearing, VCAT may decide to: 
(a)	affirm the order of VCAT at first instance; or
(b)	vary the order of VCAT at first instance; or
(c)	set aside the order of VCAT at first instance and make another order in substitution for it.
9	The relevant legislation pertaining to the POAA and GAA applications are set out in Member Cameron’s decision. I have applied those provisions to the evidence and to submissions made at the rehearing, but I shall not repeat them here.
Wishes (POAA) and will and preference (GAA)
10	Statements made by the principal at the rehearing were more confused than those she expressed to Member Cameron at the first hearing. She expressed a desire to live in her Town H home. But, she did not really understand the nature of the proceedings and did not express clear views on who should manage her affairs. 
Enduring power of attorney
11	From the transcript and the reasons given by Member Cameron, I note that the applicant’s submissions made before me about the attorney were substantially the same as what was said at the hearing before her. However, the applicant no longer asserts that she can care for the principal at home and concedes a need for full time aged care. Since Member Cameron’s decision, the principal’s Refundable Accommodation Deposit (RAD) at the aged care facility has reduced to $50,000 and her Daily Accommodation Payment (DAP), payable because the RAD isn’t paid in full, is reduced from $20.43 to $10.21 per day. Interest on the outstanding RAD is 7.06% or $9.67 per day. The attorney has listed the principal’s retail property for sale, although the tenant remains in occupation and continues to pay rent. 
Financial matters
12	In respect of financial issues, the applicant’s case is that the attorney has breached his duties as an attorney because he has not kept adequate records, not exercised due care and skill, and paid insufficient regard to the principal’s wishes. 
13	The attorney has submitted comprehensive statements and records to VCAT during the long course of these proceedings. While his records are not to a professional accounting standard, they show the course of transactions sufficient to determine the assets, income, liabilities and outgoings for the principal. The attorney has kept records to the standard that would be expected of a lay attorney managing a relatively straightforward estate. Therefore, I am unable to accept the applicant’s assertion that the attorney has failed to keep adequate records.
14	At the re-hearing, the applicant reiterated concerns about the attorney’s exercise of due care and skill. Essentially, the applicant submitted that the attorney adopted a course of sale of assets for reasons of convenience, described by her as a ‘fire sale approach’. He was criticised for not seeking detailed financial advice about the options, but imposing his own decisions on advisers, which favoured the sale of property to fund the payment of a RAD, rather than keeping the RAD outstanding or withdrawing money from an MLC investment. 
15	The attorney consulted the same financial planner and solicitor that the principal had used when she and her late husband had independently managed their estate. He sought and was given basic financial and legal advice about his options and noted his preference for sale of property rather than paying RAD interest and the DAP. He preferred this due to the state of repair of the remaining property and the ongoing costs of maintenance, insurance and utilities. 
16	I do not accept the applicant’s argument that for the attorney to prefer sale of assets over the option of withdrawal from an investment or not paying the RAD is in breach of his duties. The attorney’s belief that he will achieve a higher income by maintaining the MLC investment and selling an asset is plausible and rationally arrived at. His financial approach in this regard mirrors that of the vast majority of professional and lay attorneys and administrators. The applicant has not established that any significant financial loss has occurred, or will occur, for the principal.
17	Applicant’s counsel referred on many occasions to the attorney’s ‘carte blanche’ attitude towards financial matters and insinuated motives about his behaviour that were not supported by the evidence. Her argument appeared to be that although the attorney had been given full decision-making powers under the instrument, he should not have used those powers or should have shared those powers with other persons who were not so appointed. I do not accept that his attitude is inappropriate for an attorney or that an attitude, of itself, could establish a breach of his duties. There is no expectation at law that an attorney ought to shy away from exercising powers assigned to him or that he ought to share the exercise of those powers with unappointed persons. Indeed, his duty is the opposite. 
18	As to issues about the attorney’s dealings with the principal’s chattels and the motor vehicle, submissions at the rehearing repeated those from the initial hearing. I have considered all the evidence and submissions presented at this and the last hearing and concur with Member Cameron’s findings that the attorney has adhered to his duties with respect to the distribution, storage, and preservation of chattels. I also concur with her validation of the conflict transaction regarding the vehicle. 
19	Arguments raised by the applicant about the attorney’s failure to provide spending money to the principal were repeated at the rehearing. Unfortunately, as relations between the attorney and his siblings are so poor, a lack of communication means that simple transactions are impeded. However, I am satisfied that the attorney has established systems with the aged care facility that means that the principal and people visiting her can access small sums and the applicant and her sister could seek reimbursement from the attorney for expenses. That this is a tense situation is not sufficient to establish a breach of duty. 
20	Vague assertions were made by the applicant’s counsel that during the time the attorney lived with and cared for the principal, he may have mixed his funds with hers in breach of his duties. No financial records were submitted to prove this point or to suggest the extent of possible loss. It seems to have been a speculative argument. I do not give it further consideration. 
21	In respect of the attorney’s duties to observe the principal’s wishes, the applicant submitted that the principal and her late husband maintained their estate as a diversified portfolio with a mix of property and investments. The applicant submitted that this mix was evidence of the principal’s will and preference to retain some property in her portfolio. There was no evidence of her having a special affection for, or reason to retain (e.g., special provision in a will), the retail property. The attorney submitted that a decade ago the principal and her late husband entertained financial advice that eventually all property would have to be sold and, therefore, sale of the retail property would be consistent with her wishes. As there is no evidence either way, I conclude that the principal has no special wishes about retention or otherwise of the retail property. Arguments that the sale of the retail property is contrary to her wishes are speculative. 
22	Another argument the applicant raised about the sale of the retail property was the capital gains tax (CGT) implications. The attorney was cognisant of those implications and has been in consultation with an accountant about it. I am satisfied that the attorney has factored CGT into the costs of the sale and has made a reasonable decision that the benefits outweigh the costs. 
23	As the principal retains a special love of her Town H residence and spoke fondly of its ‘perfection’ during these proceedings, I am satisfied that sale of that property was contrary to her wishes. However, I am not satisfied that sale of that property was in breach of the attorney’s duties. He has put forward cogent reasons why the property was sold and noted that the proceeds of sale funded the payment of the majority of the RAD, reducing the principal’s liabilities and outgoings. 
24	An allegation that the attorney has breached his duties in respect of financial management is a serious allegation that needs to be supported by evidence. The onus of proof is on the applicant. To countermand the principal’s intentions when executing the instrument, the Tribunal must proceed on the basis of tangible breaches of duty and quantifiable loss or disadvantage to the principal. Mere attitudes or differences of opinion about how to meet expenses and debts do not establish a breach of those duties to the requisite standard. The applicant has not discharged her onus. The application in relation to the attorney’s exercise of his financial duties under the power ought to be dismissed and, in that respect, I affirm Member Cameron’s decision. 
Personal matters
25	In respect of the decision-making powers for personal matters assigned to the attorney, the applicant argues that the principal should be living in Town H where she is closer to family and friends. They argue that her hygiene, her pain management and her nutrition are inadequate where she lives. If she were relocated to Town H, family members could assist more regularly with personal care issues and her health, hygiene, dignity and quality of life would be enhanced as a result. 
26	It was not directly stated, but I infer from the arguments that the applicant’s case is that the hygiene, pain management and nutrition issues become the attorney’s fault because of his selection of the facility, specifically its location, and therefore he has breached his duty as an attorney for personal matters. 
27	Evidence from the CEO of the facility is that the principal has been resistive to hygiene management since prior to admission to the facility. She resists showering and hygiene interventions on a regular basis, but staff are still able to achieve it to a level that is consistent with her age and health. Nail care and dental care is available to the principal through the facility but the principal is not always compliant with receiving that care. After an initial drop of 1kg weight on admission, her weight is now within the normal range for her height.  
28	The applicant did not successfully demonstrate that the principal’s hygiene and health issues result from the actions or inactions of the attorney. There is no evidence that she has been admitted to a sub-standard facility or that the attorney chose to admit her to care that was insufficient to her needs. I accept that the necessary personal care is available to the principal at the facility but, due to her behaviour and health, staff make choices to limit interventions on occasion to avoid causing her distress.   
29	Alternatively, the applicant argues that if the principal was admitted to a facility in Town H, her daughters could attend to her personal care and would be more successful at hygiene interventions than aged care staff because they are familiar to her. The CEO of the facility gave evidence that, while a daughter had success in bathing the principal on one occasion, it does not guarantee that the principal will cooperate with her on all occasions, as the primary barrier to hygiene is the principal’s aversion to nakedness, regardless of who is providing care. The CEO explained that this behaviour is common with persons with dementia. 
30	The attorney argues that he cared for his mother in her home as long as he could. On the basis of medical and other professional advice, he reluctantly came to a conclusion that he could no longer care for her at home. He then conducted a thorough search of facilities that were available in the principal’s local area, and he took on board a wish she expressed to live in Town C where she had lived earlier in her life. I accept that he was familiar with the facilities he was researching because he had provided services to the facilities as a tradesperson and had formed his own view of the suitability of each facility. I am satisfied that he adhered to his duties as attorney in making a considered and responsible choice as to the facility to which he would have the principal admitted. 
31	The applicant argues that a direction given by the attorney to the aged care facility not to allow visitors to the principal for a period was a breach of his duties.  The attorney submitted that the restriction was imposed on advice to allow the principal time to settle into the facility. It has since been lifted and there are no restrictions on visitors or outings. I am satisfied that this was not a breach of his duties. 
32	Taking into account the evidence presented at this and earlier hearings, the materials filed and the submissions, I affirm Member Cameron’s dismissal of the application insofar as it related to the personal decision-making powers of the attorney. 
33	The attorney stated at the rehearing that, if a suitable facility were to become available to the principal in Town H, he would entertain moving her to Town H if he was satisfied that it would not impact her wellbeing. I recorded this as a direction in the orders. 
34	In other arguments, counsel for the applicant argued that although the validity of the power was not in issue, the power may not represent the principal’s wishes as she may not have been made aware of alternatives to the appointment of the attorney or of conditions she may have stipulated for oversight of the power or involvement of, or consultation with other persons, such as her daughters. Counsel for the applicant also made arguments about the attorney’s failure to consult with his siblings about personal and financial decisions he made on behalf of the principal. Neither argument has any basis in law. Both arguments wilfully ignore the principle of self-determination inherent in a competent principal, guided by legal advice, selecting and appointing an attorney of her choice. 
35	The applicant has not discharged the onus of proof in relation to breaches of the attorney’s duties. Accordingly, Member Cameron’s decision in relation to dismissal of the application under the POAA is affirmed. 
The gaa applications
36	Medical evidence provided by Dr Robertson confirms that the principal now lacks decision making capacity for personal and financial matters because of her dementia.
37	The enduring power of attorney covers the field of possible guardianship and administration decisions. The attorney has not been shown to have breached his duties, been incompetent or somehow lacking in an ability to make requisite decisions. With the attorney’s concession that he will consider having the principal admitted to a suitable facility in Town H on conditions noted in the direction, there would be no other improvement to the principal’s personal and social wellbeing with the appointment of a guardian or administrator. Noting the principal’s will and preferences (expressed above as ‘wishes’ under the POAA), the applicant has not demonstrated that appointment of a guardian or administrator would promote the principal’s will and preference. The GAA applications fail because of the lack of a demonstrated need for a guardian and administrator.
38	Sometimes VCAT appoints a guardian and administrator where family conflict undermines the effectiveness of an otherwise competent attorney to avoid the impacts on the principal of ongoing family conflict. This does not present as such a case. The principal sat through two sessions of hearings before me and the hearings before Member Cameron. There is no evidence that she was distressed by the proceedings or suffers because of the family conflict. When asked direct questions about the proceedings she seemed blithely unaware or unconcerned that her children are engaged in this dispute. 
39	Taking into account the evidence presented at this and earlier hearings, the materials filed and the submissions, Member Cameron’s decision in relation to the GAA applications is affirmed. 
costs
40	In his statement dated 15 February 2024, the attorney made an application for costs of the rehearing. As my decision was reserved, the parties have not had an opportunity to make submissions about costs. I note the attorney’s application for costs of the original hearing was withdrawn at the hearing, so I assume this application only relates to costs of the rehearing. 

41	The attorney and the applicant will be given an opportunity to make written submissions in relation to the attorney’s costs, whether costs are sought from the applicant or from the principal’s estate.

A. Smith
Senior Member