VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
GUARDIANSHIP LIST	
vcat reference No. G99313	
CATCHWORDS	
Guardianship List – application for appointment of an administrator – disability and effect on decision-making - whether proposed represented person has decision-making capacity for the relevant financial matters – whether administrator needed – relevant principles under the Act – will and preferences of the person – powers and duties of an appointed administrator – Guardianship and Administration Act 2019 (Vic) sections 5, 8, 9, 29, 30, 31, 55	

Represented person	CPG	
WHERE HELD	Melbourne via videoconference	
BEFORE	Member O Mahoney	
HEARING TYPE	Hearing	
DATE OF HEARING	4 December 2024	
DATE OF ORDER	4 December 2024	
date of written reasons	23 January 2025	
citation	CPG (Guardianship) [2025] VCAT 63	

Order
VCAT orders that:
1	State Trustees Limited, [REDACTED], is appointed administrator for CPG.
2	State Trustees Limited has power to make decisions about all financial matters.
3	The administrator powers given under the Guardianship and Administration Act 2019 (Vic) (the Act) section:
-	46(1)
-	52
-	51
4	Administrators must comply with the Act, which outlines their powers and duties.
5	The administrator must complete and send a Financial Statement to VCAT for approval at the time the order is due for reassessment, or when VCAT requests it.
VCAT makes this order because it is satisfied that:
-	Due to a disability, CPG does not have capacity to make decisions about the financial matters listed in this order,
-	CPG needs an administrator, considering the factors set out in section 31 of the Act, including their will and preferences (what’s important to them), and
-	This administration order will promote the personal and social wellbeing of CPG.
Reassessment of this order:
6	This order applies until VCAT makes another order.
7	Anyone can apply for VCAT to reassess this order at any time.
8	VCAT is due to reassess this administration order by 31 December 2025.
VCAT will automatically schedule a hearing and notify the parties and interested persons when the reassessment hearing can be scheduled. Unless VCAT makes a new order that cancels (revokes) this order, this order does not expire, even if a reassessment does not take place until after the above date.
Change of contact details:
9	If State Trustees Limited or CPG changes contact details (email, phone or address), State Trustees Limited must immediately inform VCAT in writing.
Payment for acting as an administrator:
10	State Trustees Limited is entitled to payment (including GST) from the funds of CPG as follows:
A commission on gross income received, not exceeding:
-	3.3 per cent of Centrelink or Department of Veterans’ Affairs pensions, and
-	6.6 per cent of all other income received.
AND
A commission on assets of the estate.
If an asset is sold or brought in during the administration, for the values of the asset the commission must not exceed:
-	3.3 per cent of any amount up to $500,000 and
-	1.5 per cent of the amount (if any) between $500,000 and $1 million, and
-	0.55 per cent of the amount (if any) between $1 million and $3 million, and
-	0.44 per cent of the amount (if any) in excess of $3 million.
For any other asset, the commission must not exceed 2.2 per cent of the asset’s value immediately before the end of the administration. This commission only applies if the administrator has not otherwise received reasonable payment for its work, and if VCAT approved it by order. No order is needed if the administration ends at the death of the represented person.
For all commissions on income and assets:
-	The value of an asset is its gross value, and
-	The method of calculating value and the definition of gross value are as set out in the scale of charges published in the Victoria Government Gazette.
AND
A fee not exceeding 0.88 per cent per year on the capital sum invested in any State Trustees Limited common fund.
If State Trustees Limited provides any other estate-related services to the estate, it is entitled to payment. The payment rate must not exceed the amount in the scale of charges published in the Victoria Government Gazette.

O. Mahoney
Member			

APPEARANCES:	Ms D Thomas, representative of the applicant. 
AMJ, son of the RP (in-part).

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 the decision, I refer to the person who is the subject of the application as CPG. 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. 
2	The applicant and the applicant’s representative at the hearing, Ms D Thomas, are employees at the Aged Care Facility where CPG has resided since October 2023. The applicant applied for an administrator to be appointed for CPG and raised the following issues: aged care fees unpaid, pharmacy bills unpaid and no funds for basic necessities of daily living as well as AMJ, the primary contact and next of kin not replying to communications raising these concerns.
3	There was a hearing on 4 December 2024 where I was the presiding member. I made orders at the end of the hearing and gave oral reasons for my decision. AMJ has asked for written reasons and I set out below a written version of the reasons I gave at the hearing. The reasons are expanded for clarity and precision but do not depart from the substance of the oral reasons given at hearing which were necessarily abbreviated due to time pressure caused by AMJ’s late attendance at hearing.
4	I appointed State Trustees Limited (STL) as administrator for CPG with power to make decisions about all financial matters for her. I ordered that the administrator could exercise all the powers of an administrator in the Guardianship and Administration Act 2019 (the Act).
5	The applicant had made the error of selecting an application for guardianship order on the online application form. Only financial management issues were raised in the narrative and an application for an administration order was plainly the correct application. I listed an administration order on the day and determined it while simply dismissing the application for guardianship. Necessary procedural orders were made to give effect to this outcome.
The hearing
6	At the hearing, I heard evidence from the following people: CPG, Ms Thomas and AMJ.
7	AMJ did not attend the hearing at the scheduled time. He attended at a point in time where I had already announced an intention to appoint STL as administrator. He explained that he had not been provided the log in codes for the videoconference.
8	The evidence given prior to his attendance was straightforward. No aged care fees have been paid since admission in October 2023. The staff of the aged care facility (ACF) have not been able to reach AMJ via phone or email. CPG has two other adult children but she does not consider that either is suitable to be appointed to the role of administrator (her daughter has a disabled child and CPG would not seek to burden her and she has little contact with her eldest son). CPG described AMJ as a workaholic and did not seem surprised that the aged care staff had difficulties communicating with him. CPG is a pensioner with no other assets and therefore should be a fully Commonwealth supported resident whose pension should account for her care fees. CPG described herself as ‘angry’ that ‘someone is fiddling with her bank’. CPG was unable to tell me which financial institution she has her account with. CPG welcomed the proposed appointment of STL prior to AMJ’s attendance at the hearing – ‘Yes please’.
9	AMJ explained that direct debits have been coming out of his mother’s account and that he’s ‘been trying to get on top of them but we just can’t get on top of it’. He explained that he had been into the bank and ‘found out what’s happening’. It transpired that this occurred after he received an email from the ACF raising the unpaid fees in the last ‘two or three months’. It emerged that one of the direct debits relates to a car loan to the benefit of her grandson (AMJ’s nephew). AMJ explained ‘it was done a while ago. Yeah. It’s things we’re trying to get on top of’.
10	AMJ proposed twice in the hearing that an appropriate resolution would be to open a fresh bank account in which the pension could be paid ‘that’s not getting anything done with direct debits’ because ‘if her Centrelink doesn’t come out of that account then it won’t matter’ and that he could get his nephew ‘to pay [the car loan] back himself’. When I enquired as to what efforts had been made to require the nephew to repay, AMJ replied, ‘[he has] got conversations going’.
11	AMJ lives in a regional Victorian town and volunteered that it is ‘quite hard’ for him to get to the inner west suburban ACF where his mother resides and agreed with his mother’s assessment that he is a workaholic.
12	When I explained to AMJ that there may have to be legal advice sought and legal action considered as to the bank loan and the role of his nephew, AMJ agreed that he would not be comfortable to have responsibility for that.
13	The precise amount of the aged care debt is $36,526.74. Upon becoming aware of the extent of the debt CPG became distressed. When I announced that STL, an expert administrator, was to be appointed and that the decision would mean that her family would therefore not be involved in financial decision-making she was able to be settled and reassured and was thankful. 
14	AMJ confirmed that CPG has never made a Power of Attorney.
15	I also had in evidence a medical report of Dr O, dated 23 July 2024, which contained the opinion that CPG has a diagnosis of dementia and that due to her cognitive deficits she lacks decision making capacity for financial and property affairs and lacks the capacity to make an enduring power of attorney.
Principles
16	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. 
17	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. 
The will and preferences of CPG
18	When appointing an administrator, VCAT must apply the principles in section 8, including that CPG’s will and preferences should direct the decision ‘as far as practicable’.
19	CPG’s will and preferences are relevant also when VCAT decides whether a person needs an administrator (section 31) and whether a proposed administrator is a suitable person to be appointed (section 32(3)(a)).  
20	CPG attended the hearing and welcomed the appointment of an administrator and indeed welcomed the appointment of an independent administrator. At no time during the hearing, either before or after the attendance of AMJ, did CPG suggest that he or another member of her family was to be preferred as administrator instead of the STL. It is open to me to find on the basis of her remarks regarding the difficulty of contacting AMJ and her description of him as a workaholic that she did not consider AMJ to be a suitable candidate to be appointed on the basis of his unavailability.
21	Based on this evidence, I was satisfied that CPG supports the appointment of STL as her administrator.
Disability and decision-making
22	Section 30(2)(a) of the Act says VCAT may only appoint an 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 financial matters which are the subject of the application. 
23	I received the medical report of Dr O dated 23 July 2024 which contained the opinion that CPG has a diagnosis of dementia and that due to her cognitive deficits she lacks decision making capacity for financial and property affairs and lacks the capacity to make an enduring power of attorney.
24	No party present at the hearing sought to suggest that CPG retained capacity for these matters. 
25	Based on the medical report and CPG’s inability to identify her banking institution, which I find to be entirely consistent with the medical evidence expressed, I am comfortably satisfied that CPG now lacks the capacity to make decisions about all of her financial affairs. 
Is a supportive administration order appropriate?
26	Appointing a supportive administrator would be less restrictive than appointing an administrator. A less restrictive order would be consistent with the principles in section 8 of the Act. 
27	VCAT has power to appoint a supportive administrator whenever an application is made for appointment of an administrator, as provided by section 87 of the Act. 
28	However, to appoint a supportive administrator for a person, the person must consent and must have decision-making capacity when practicable and appropriate support is provided, as set out in section 87(2) of the Act. 
29	In the present case, this less restrictive alternative is not available because the medical report made clear that there was no likelihood CPG would have decision-making capacity even when supported. 
30	Accordingly, that less restrictive alternative is not available in this case. 
Need for an administrator
31	Section 30 (2)(b) of the Act says VCAT may only appoint an administrator for a person if satisfied that the person needs an administrator.
32	Section 31 of the Act sets out a number of matters VCAT must consider in determining whether a person needs an administrator. VCAT must consider the person’s will and preferences (as far as they can be ascertained) and whether decisions about the relevant financial matters could be more suitably made informally or could reasonably be made by mediation, negotiation or some similar method. VCAT must also consider the wishes of any primary carer, relative or other person with a direct interest in the application and must also consider the desirability of preserving existing relationships important to the person with a disability. 
33	In this case CPG needs an administrator because she has significant debts and unclear financial obligations of questionable origin and validity that require investigation and potentially legal advice and legal action. AMJ has to some modest degree attempted to resolve these matters informally but without success. I therefore determine that less formal decision-making is not practicable.
34	I have considered CPG’s will and preferences – that she welcomes the appointment of an independent administrator.
35	AMJ did not oppose the appointment of an administrator but submitted that he should have further opportunity to resolve these matters informally. Though AMJ did not expressly put himself forward for appointment, as will be seen below at paragraphs 39 – 43 below, I gave consideration to his appointment before appointing STL. 
36	Appointing an administrator will not interfere with the relationships that are important to AMJ because I accept CPG’s own assessment that she has fairly limited contact with her children and additionally, I am satisfied that no family member is displaced by this order from any formal decision-making role hitherto held.
37	Taking all this into account, I am satisfied that CPG needs an administrator. 
Personal and social wellbeing
38	Section 30(2)(c) says VCAT may only appoint an administrator for a person if satisfied that the administration order will promote the person’s personal and social wellbeing. I am satisfied in this case that the order will do so because an administrator will be able to ensure that her bills are paid and that she is only incurring such financial obligations as are appropriate to her circumstances and her estate has a sustainable financial footing.
Who should be the administrator?
39	In this case, no relatives other than AMJ were available to be appointed. No other family members attended the hearing nor were identified as appropriate to be appointed.
40	In determining who is a suitable person, section 32(3) (d) requires that I take into account whether the person to be appointed (a suitable person section 32(1)(c)) will be available to meet and communicate with the proposed represented person. By AMJ’s own admission, he will find it difficult to attend upon his mother personally due to his location in regional Victoria and will find it difficult to dedicate sufficient time to these complex matters as he is a workaholic -- which I interpret to mean a person whose employment overwhelms all other priorities in their life.
41	I must also take into account the desirability of appointing a relative rather than a person with no such relationship (section 32(3)(d)) and the desirability of preserving existing relationships that are important to CPG – see paragraph 36 above. In this case there is a reasonable likelihood on the available evidence that the financial arrangements between CPG and her grandson will be the subject of scrutiny and potential dispute. I do not consider that appointing AMJ (who acknowledged the invidiousness of this potentiality at hearing) as administrator would serve to preserve family relationships and that the particular circumstances tend against the presumed desirability of appointing a family member at this time.
42	Section 32(2) of the Act requires that I be satisfied that the person to be appointed has sufficient expertise. AMJ’s proposal to simply open a new bank account into which the Centrelink payments could then be directed, thereby bypassing the legitimate creditors demonstrates an absence of baseline financial and legal knowledge that causes me to be satisfied that he lacks sufficient expertise to be appointed.
43	The order says that the administrator can make decisions about all financial matters and exercise all the relevant powers in the Act (sections 46, 51 and 52). In this case it is not prudent to omit decision-making power about any sort of financial matter as it may make the order ineffective or require a reassessment to add the necessary powers.
44	Pursuant to section 55(g) and section 175 of the Act orders were made for STL to be paid fees and commissions in the usual terms. In respect of CPG’s modest estate such charges will largely be notional and certainly do not tend against the appointment of a professional administrator. 
How long does the order last?
45	This order will be reassessed before the end of one year. AMJ or anyone else can apply for the reassessment to be sooner if that is necessary. The Act provides for orders up to three years in length before re-assessment is required.  This is a targeted intervention for one year – to resolve the current untenable financial situation, negotiate with creditors, resolve any legal issues pertaining to the estate and its liabilities and re-establish the financial estate on a sustainable footing. As I made clear to the parties at the hearing once stability is restored it may be appropriate for AMJ or another family member to apply to be appointed administrator if that is their choice. 

O. Mahoney
Member