VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
GUARDIANSHIP LIST	
vcat reference No. G99453	
CATCHWORDS	
Guardianship List – application for appointment of a guardian – disability and effect on decision-making - whether proposed represented person has decision-making capacity for the relevant personal matters – whether a guardian needed – relevant principles under the Act – will and preferences of the person – powers and duties of an appointed guardian – Guardianship and Administration Act 2019 ss 5, 8, 9, 29, 30, 31, 33, 41 - Medical Treatment Planning and Decisions Act 2016 s 55 - invalidity of power of attorney appointment – revocation of power of attorney appointment – Powers of Attorney Act 2014 ss 23, 44 & 118.	

Represented person	VIU	
WHERE HELD	Oakleigh	
BEFORE	Senior Member C. Powles	
HEARING TYPE	Hearing	
DATE OF HEARING	15 May 2023, 6 February 2024 & 6 May 2024	
DATE OF ORDER	6 May 2024	
date of ORAL Reasons	6 May 2024	
DATE OF WRITTEN REASONS	26 August 2024	
citation	VIU (Guardianship) [2024] VCAT 814	

Order
The principal attended the hearing in person.
Powers of Attorney
1	The power of attorney appointment made 13 April 2023 is invalid because VCAT is satisfied that the principal did not have capacity to appoint an attorney at that time.
2	Accordingly, the revocation of the power of attorney appointments made on 12 January 2018 is also invalid.
3	The power of attorney appointments made by the principal on 12 January 2018 are suspended in their entirety.
Appointment of guardian
4	MQD, [address redacted], is appointed guardian for the principal.
5	The guardian has power to make decisions about these personal matters:
-	who the principal can see.
6	Guardians must comply with the Guardianship and Administration Act 2019 (Vic) (the Act), which outlines their powers and duties.
Appointment of administrator
7	MQD, [address redacted], is appointed administrator for the principal.
8	MQD has power to make decisions about all financial matters.
9	The administrator has powers given under sections 46 (1) and 52 of the Act.
10	Administrators must comply with the Act, which outlines their powers and duties.
11	The administrator must complete and send to VCAT for approval a Financial Statement and Plan no later than 17 June 2024.
12	The administrator must prepare an annual Account by Administrator. They must submit the first ABA:
-	for the accounting period: 6 May 2024 to 30 June 2025;
-	as soon as possible after 30 June and no later than 30 September 2025;
-	to be examined by State Trustees Limited, who may charge the estate an approved examination fee.
13	The administrator must submit all later ABAs:
-	for each financial year, from 1 July to the following 30 June;
-	as soon as possible after 30 June, and no later than 30 September in each year.
Reassessment of this order
14	This order applies until VCAT makes another order.
15	Anyone can apply for VCAT to reassess this order at any time.
16	VCAT is due to reassess this administration order by 30 June 2027.
17	VCAT is due to reassess this guardianship order by 30 June 2025.
18	VCAT will automatically schedule a hearing in notify the parties and interested persons when the reassessment hearings can be scheduled. Unless VCAT makes a new order that cancels (revokes) these orders, these orders do not expire, even if a reassessment does not take place until after the above dates. 
Change of contact details
19	If the guardian, administrator or the principal change contact details (email, phone or address), the guardian or administrator must immediately inform VCAT in writing.
VCAT records that CVX is currently the primary carer of the principal and is available, willing and able to make medical treatment decisions for the principal. Therefore, under section 55 of the Medical Treatment Planning and Decisions Act 2016 (Vic), CVX is currently the medical treatment decision-maker for the principal.

C. Powles
Senior Member			

APPEARANCES on 6 February 2024:
	VIU, the represented person
CVX, son of VIU
VAP, daughter of VIU
VAP’s former partner
UTO daughter of VIU
E. Antonopoulos, Office of the Public Advocate	
APPEARANCES ON 6 MAY 2024:	VIU, the represented person
CVX, son of VIU
VAP, daughter of VIU
VAP’s former partner
UTO daughter of VIU
MQD, son of VIU
MQD’s partner
QOM, son of VIU
QOM’s son
EHM, son of VIU
EHM’s son
E. Antonopoulos, Office of the Public Advocate	

Reasons
The Victorian Civil and Administrative Tribunal (VCAT) is providing these reasons on a confidential basis. Clause 37(1) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 provides that unless VCAT orders otherwise, a person must not publish or broadcast any report of a proceeding under the Guardianship and Administration Act 2019 that identifies or could lead to the identification of a party to the proceeding.
Introduction
1	In these written reasons for decision, I refer to the person who is the subject of the application as VIU. 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. For the same reason, some of VIU’s family members involved in this proceeding have also been given anonymised names.
2	VIU is an 86-year-old woman who was born in the Philippines. She has had eight children, one of whom is deceased. In the early 1980s, after separating from her first husband, the principal moved to Australia and settled in Traralgon, where she remarried and sponsored her children to move to Australia. In the late 1990s she purchased two commercial properties in Traralgon from which she derives rental income (the Traralgon properties). 
3	In 2002, VIU separated from her second husband and moved to Melbourne where she purchased a home close to the homes of two of her youngest children, VAP and CVX.
4	On 12 January 2018, VIU appointed VAP and another daughter, UTO, as her joint attorneys under the Powers of Attorney Act 2014 (Vic) (the POA Act) for financial and personal matters, with the powers commencing upon the loss of VIU’s decision-making capacity (the 2018 appointment).
5	On 13 April 2023, VIU revoked the 2018 appointment and appointed CVX and UTO as her joint attorneys under the POA Act for personal and financial matters, effective immediately (the 2023 appointment).
6	On 24 April 2023, VAP applied for orders under the POA Act in relation to the 2023 appointment and the revocation of the 2018 appointment. 
7	The application was subsequently amended to include an application for the appointment of a guardian and administrator for VIU under the Guardianship and Administration Act 2019 (Vic) (the Act). 
8	On 15 May 2023, VCAT referred the application to the Office of the Public Advocate (OPA) for investigation.
9	On 5 February 2024, OPA provided an investigation report to VCAT (the report) and copies of the report were provided to the parties.
The hearingS
10	There was a preliminary hearing before another Senior Member on 15 May 2023 (the preliminary hearing) where, as noted above, orders were made referring the application for investigation by OPA.
11	The first hearing where I was the presiding member was on 6 February 2024. That hearing was conducted by videoconference. 
12	At that hearing I made orders for the further conduct of the application and in relation to how the proceeds of the sale of the Traralgon properties, which had already been arranged by the time of that hearing, should be reported on and managed pending further orders by VCAT.
13	I presided at a second hearing on 6 May 2024, which was conducted in person at the VCAT Oakleigh venue.  
14	Before both hearings, VAP, CVX, UTO provided several written submissions in support of their positions in relation to the application and in response to the report. OPA also provided supplementary reports to the report.
15	At the hearings on 6 February 2024 and 6 May 2024, I heard evidence from the following people: VIU; VAP; CVX; UTO; VAP’s former partner; OPA; CVX’s son; two other of VIU’s sons, QOM and EHM; and QOM’s son. 
16	During the 6 May 2024 hearing, I spoke with VIU without the other parties present.
17	At the conclusion of the hearing on 6 May 2024, having considered all the submissions and reports referred to above and heard from the parties at the hearing, I made the orders set out at the beginning of these reasons and gave oral reasons for doing so.
18	Since that hearing, VAP, UTO and CVX have requested written reasons for the orders I made on 6 May 2024. 
19	These reasons reflect the reasons given orally in the hearing, with some additional background, and editing, to improve readability and clarity. 
Principles
20	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.
21	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. 
Disability and decision-making
22	Section 30(2)(a) of the Act says VCAT may only appoint a guardian or 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 which are the subject of the application. 
23	I received the following medical reports:
a.	a letter from Dr Hamed Zinsaz to Dr Robert Durning dated 9 June 2022 diagnosing VIU as being at the early stage of a neurodegenerative syndrome;
b.	a medical report from Dr Dunning dated 26 April 2023 using the VCAT medical report template for the Guardianship List in which Dr Dunning diagnoses VIU with dementia and assesses:
i.	her as lacking decision-making capacity in relation to personal matters, financial and property affairs and the appointment of a power of attorney; and
ii.	the disability as having been evident for approximately one year; and
c.	a neuropsychology assessment report from Dr Judy Tang dated 13 August 2023 in which Dr Tang also assesses VIU as lacking decision-making capacity in relation to personal and financial affairs.
24	At the preliminary hearing, both Dr Durning and Dr Zinsaz stated that their assessment was that VIU lacked decision-making in relation to the appointment or revocation of an attorney in April 2023. 
25	While VIU was clearly unhappy with the medical assessments, the other parties involved in this matter did not dispute that VIU currently lacks decision-making capacity in relation to personal and financial matters and the appointment of an attorney. 
26	Having considered the medical reports submitted, the evidence provided by the treating practitioners at the 15 May 2023 hearing and having spoken directly with VIU at the 6 May 2024 hearing, I was satisfied that:
a.	VIU lacks the capacity to make decisions in relation to appointing an attorney and in relation to her personal (including medical treatment) and financial affairs; and
b.	lacked capacity to revoke the 2018 appointment and make the 2023 appointment. 
Do any decisions need to be made THAT MAY REQUIRE THE APPOINTMENT OF a guardian AND/OR ADMINISTRATOR? 
27	Section 30(2)(b) of the Act says VCAT may only appoint a guardian or administrator for a person if satisfied that the person needs a guardian or administrator.
28	Section 31 of the Act sets out a number of matters VCAT must consider in determining whether a person needs a guardian or 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 reasonably be made by mediation, negotiation or some similar method. 
29	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. 
30	In this case, VIU is someone who has clearly made some very wise financial decisions over the course of her life which have ensured that she has been able to raise a family of eight children and, having done so, still have some significant assets about which there are financial decisions to be made. 
31	As with anyone VIU’s age, I was satisfied that, within the next 12 months (being the usual length of any initial guardianship appointment and so a useful starting point for assessing when decisions may need to be made by or for a person), there are likely to be medical treatment decisions that may well need to be made about VIU. 
32	It was clear from the material presented by and on behalf of the parties to this application that there has been a significant breakdown in relations between VIU’s family members. Intervention orders have been taken out, including on behalf of VIU against VAP (although these are now no longer in force). 
33	Whether VIU wants to see VAP remained an issue very much in dispute. In these circumstances, I was satisfied there are decisions that need to be made about who VIU sees or is in contact with. 
34	It was not suggested by any of the parties, or in the report, that VIU’s current living arrangements need to change. VIU currently receives assistance through a home care package and it has not been suggested that this arrangement needs to be changed or requires the appointment of a formal decision-maker to be varied.
35	Taking all this into account, I was satisfied that there are decisions that need to be made about: 
a	VIU’s finances;
b	who VIU is able to see; and
c	VIU’s medical treatment.
CAN THE DECISIONS BE MADE LESS FORMALLY THAN BY THE APPOINTMENT OF A GUARIDAN AND/OR ADMINISTRATOR?
36	As I found VIU does not have decision-making capacity in relation to the above matters and cannot appoint an attorney to make those decisions on her behalf, I was required to consider whether those decisions can be made less formally than by the appointment of a guardian or administrator. 
37	If either the 2018 appointment or 2023 appointment were in effect, the attorneys appointed would be able to make the above decisions on VIU’s behalf without the formal appointment of a guardian or administrator. 
38	Accordingly, I decided whether either of those appointments are, or should remain, in effect. 
2023 appointment
39	Section 23 of the POA Act requires that an enduring power of attorney may not be made unless the person has decision-making capacity in relation to its making. 
40	Section 118 of the POA Act provides that VCAT can only declare a power of attorney appointment invalid in certain circumstances, which include that the person making the appointment did not have capacity to do so at the time the appointment was made. 
41	As noted above, I was satisfied that VIU lacked the capacity to make the 2023 appointment. Hence, I declared the 2023 power of attorney appointment is not valid and is not in effect.
42	This finding equally applied to the revocation of the 2018 appointment, which, for the same reason, I found was not a valid revocation under the POA Act.

2018 appointment
43	Section 4 (2) of the POA Act required that I presume that VIU had decision-making capacity to make a power of attorney appointment unless there is evidence to the contrary. 
44	I received very little evidence in relation to VIU’s decision making capacity in 2018 and I was not satisfied there was any evidence that would rebut the presumption that VIU had capacity to make the 2018 appointment. 
45	Having reviewed the copies of the 2018 appointment documents, I was satisfied that the 2018 appointment otherwise complies with the validity requirements under the POA Act and, accordingly, I found that the 2018 power of attorney appointment was valid. 
46	As I found that the revocation of the 2018 appointment purportedly made in 2023 was not, in fact, validly made, the 2018 appointment remains in effect, subject to any further orders.
47	However, the 2018 appointment is of VAP and UTO as a joint attorneys. For the 2018 appointment to be effective, and for VIU’s wishes about who should make decisions for her as expressed in the 2018 appointment to be given effect, VAP and UTO must be able to work together as joint attorneys.
48	It is clear on all of the material presented in this proceeding that there has been a significant breakdown in the relationship between VAP and UTO. I was not satisfied there is any basis on which they could practically and functionally work together as joint attorneys. 
49	As a result, I was satisfied that the 2018 appointment should be suspended in relation to all areas of that appointment until further order.
50	Given the nature of the financial decisions that will need to be made for VIU, I was satisfied those decisions cannot be made less formally than by the appointment of an administrator.
51	There was a lot of information provided both before and at the hearings indicating that many people in VIU’s family wished there to be a mediated or compromised outcome in relation to what arrangements could be made about who VIU can see. 
52	There has clearly been a great deal of antagonism between VIU and VAP about whether VAP can come to her house, where CVX is living. It is possible that part of the cause of the antagonism is the question of whether VIU and VAP meet at that location or elsewhere. 
53	I considered whether there could be some informal agreement reached between family members so that VIU and VAP may meet at some neutral third location. I was satisfied given the levels of conflict and antagonism within the family that this could be achieved without the appointment of a formal decision-maker about who VIU can see. 
Medical treatment decision-maker
54	In relation to medical treatment decisions for VIU, those decisions can be made less formally than by the appointment of a guardian for medical treatment decisions if there is currently a medical treatment decision-maker who meets the criteria under s 55(3) of the Medical Treatment Planning and Decisions Act 2016 (Vic) (the MTPD Act). 
55	VIU does not currently have a spouse or domestic partner.
56	On the evidence presented before me, I found that CVX has been living with VIU for many years and is VIU’s primary carer. 
57	Given their ongoing living arrangements, I was satisfied that CVX is in a close and continuing relationship with VIU. He confirmed at hearing that he is willing and able to make medical treatment decisions for VIU.
58	There was not evidence put that CVX had at any point made poor medical treatment decisions for VIU in the past. As noted below, VIU clearly stated to me at hearing that she wished to have CVX make decisions for her.
59	Accordingly, I was satisfied there is no need to appoint a guardian for medical treatment decisions because CVX is currently VIU’s medical treatment decision-maker under the MTPD Act.
60	In light of the above, I found that there is a need to appoint an administrator for VIU and to appoint a guardian for VIU for decisions about who VIU can see.
Who should be appointed guardian and administrator?
61	In order for me to decide who is suitable to be appointed guardian and administrator for VIU, I had to take a number of things into account. 
62	Section 32(3) specifies that in determining whether a person is a suitable person, VCAT must take into account:
a.	the will and preferences of the proposed represented person;
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 or 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; and
e.	whether the person will act cooperatively with any current guardian or administrator.
63	As noted above, VIU attended the hearing on 6 May 2024 in person ,with the assistance of a Tagalog interpreter.  I spoke with her during the hearing at a time when I asked all the other parties to leave the hearing room  so she would feel most comfortable  expressing her  wishes. 
64	I was, on balance, satisfied that VIU understood the questions I was asking and was clearly articulating a genuine will and preference in response to my questions.  I was satisfied she answered in as  informed a way as a person living with dementia can. 
65	While speaking with me, VIU clearly expressed her wishes about who should be making decisions for her now.  She gave clear answers to my questions about who she wished to have living with her and whether her properties in Traralgon should have been sold: that is, that she wished to continue to live in her home with CVX and that she had wanted to have her Traralgon properties sold. 
66	She clearly and repeatedly stated that  she did not want VAP making decisions for her. She expressed a willingness for CVX or MQD to be a decision maker for her. I gave these expressions of VIU’s will and preferences significant weight.
67	However, I also took into account the circumstances in which VIU has expressed her wishes and preference in the past, and VIU acknowledged those past expressions of her wishes in our conversation.  She confirmed that in 2018 her wish was that if there needed to be a decision maker for her, it would be VAP and UTO. I gave significant weight to the fact that VAP and UTO were the two family members VIU chose at that time, rather than any other of her children. 
68	While I found the 2023 appointment was not legally valid, it is still an expression of VIU’s wishes at that time. It is an expression of her wishes very consistent with what she told me at hearing: that she still trusts UTO and wishes to have her in a decision-making role in her life but that she no longer wishes to have VAP in a decision-making role in her life. It also confirms her preference to have CVX appointed as a decision-maker for her.
69	At hearing, UTO stated that she currently does not wish to have a formal decision-making role for VIU because of the level of conflict within the family. 
70	CVX and MQD both seeks to be appointed as decision-makers. 
71	VAP proposed that she should be appointed as a decision-maker for VIU or, if that was not possible, that an independent decision-maker be appointed. 
72	MQD’s partner, CVX’s son, EHM and QOM’s son all spoke at hearing in support of MQD and CVX being the necessary decision-makers for VIU. 
73	I was satisfied, given the repeated way that VIU has expressed this both in the 2023 appointment and at hearing, that the strength of VIU’s views means that it would be significantly inconsistent with VIU’s will and preference to appoint VAP as a decision-maker for VIU.
74	In light of the above, I was satisfied that VAP should not be appointed as either guardian or administrator for VIU and that it would be consistent with VIU’s will and preference to appoint MQD or CVX as her decision-maker if I otherwise find them to be suitable for appointment.
Appointment of administrator
75	I note here that OPA submitted it may be more appropriate to appoint an independent financial decision maker separate from the family at least for a period of one year. 
76	I found that making such an appointment would be significantly inconsistent with the wishes of VIU and more broadly with the wishes of VIU’s family, except for VAP.
77	While I accepted OPA’s proposition that having an independent administrator may be the best guarantee of a proper investigation of any poor financial decision making by previous attorneys, against that I weighed the concern that, because of the extent of VIU’s estate,  any independent administrator would charge not insignificant fees for their administration role.
78	Taking into account that an appointed private administrator would have to provide a financial statement and plan within six weeks of their appointment and then also provide regular accounts at the end of each financial year to VCAT, I was satisfied that those reporting requirements are sufficient protection for VIU and that it was best to follow her will and preference to appoint a family member as administrator rather an independent administrator.
79	I considered whether CVX should be appointed financial decision-maker, given that by seeking to appoint him in 2023, VIU was expressing her wish that he be a decision maker. 
80	However, I found there continues to be a risk of a scenario where it may be that CVX’s interest in living in VIU’s property without paying rent may come into conflict with VIU’s financial interests. I did not find that is the case presently but considered that, at some point in the future, it is a distinct possibility.
81	On that basis, I was unable to be satisfied that it was appropriate to appoint CVX as administrator for VIU.
82	It was submitted that MQD may be sufficiently compromised by his relationship with VIU’s family that he would not be able to make the necessary independent financial decisions for VIU. 
83	I was not satisfied that is likely to be the case and, in any event, was satisfied that the reporting requirements for private administrators would allow VCAT to monitor decisions MQD may make as administrator. 
84	Otherwise, MQD is imminently qualified to be an administrator. He has financial experience and has had experience in assisting his partner with reporting requirements for an administrator appointment unrelated to this case. 
85	In the circumstances, I was satisfied that MQD is a suitable person to be appointed administrator for VIU.
86	Accordingly, I was satisfied that it is appropriate, and most importantly consistent with VIU’s wishes, that MQD is appointed as administrator.
Appointment of guardian
87	I was satisfied that there is a guardian that needs to be appointed for the decisions about who VIU may be able to see.
88	In the circumstances, while it was an option to appoint an independent guardian such as the Public Advocate, I was satisfied it is consistent with VIU’s will and preferences that it be a member of her family who is appointed in that role.
89	Given the importance of having a person who may be able to facilitate agreed arrangements for meetings between VIU and VAP, I consider that CVX, given the level of antagonism between him and VAP, would not be able to objectively make those arrangements on behalf of VIU. 
90	VAP submits that MQD may also be insufficiently independent from CVX and so should not be appointed as guardian either. 
91	On balance, I was satisfied that it was appropriate, and most importantly consistent with VIU’s wishes, to appoint MQD as guardian for decisions about who VIU can see, to give the family the best chance of managing some agreed access arrangements without the involvement of third parties, as is wished by VIU. 
92	In light of the above, I was satisfied that MQD is a suitable person to be appointed as guardian for VIU and ordered his appointment as guardian for VIA about who she can see.
Personal and social wellbeing
93	Section 30(2)(c) says VCAT may only appoint a guardian or administrator for a person if satisfied that the guardianship or administrator order will promote the person’s personal and social wellbeing. 
94	I was satisfied in this case that the order will do so because the appointment of an administrator will ensure that VIU remains in a financially secure position and the appointment of a guardian will give VIU and her family the best possibility of being able to make arrangements by agreement as to who VIU can see. 
Is a supportive guardianship order appropriate?
95	Appointing a supportive guardian would be less restrictive than appointing a guardian. A less restrictive order would be consistent with the principles in section 8 of the Act. 
96	VCAT has power to appoint a supportive guardian whenever an application is made for appointment of a guardian, as provided by section 87 of the Act. 
97	However, to appoint a supportive guardian 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. 
98	In the present case, this less restrictive alternative was not available because I was satisfied on the medical evidence presented that there is no likelihood VIU would have decision making capacity even when supported. 
99	Accordingly, that less restrictive alternative was not available in this case.
How long does the order last?
100	As required by the Act, the appointment of guardian will be reassessed before the end of one year and the appointment of administrator will be reassessed before the end of three years. 
101	MQD or anyone else can apply for the reassessment to be sooner if that is necessary.

C. Powles
Senior Member