VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
HUMAN RIGHTS DIVISION
GUARDIANSHIP LIST	
vcat reference No. G77923	
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 sections 5, 8, 9, 29, 30, 31, 32, 55	

REPRESENTED PERSON	QGL 	
WHERE HELD	Melbourne	
BEFORE	Judge Hampel, Vice President  	
HEARING TYPE	Hearing	
DATE OF HEARING	1 March 2021 	
DATE OF ORDER AND WRITTEN REAONS	10 March 2021	
CITATION	QGL (Guardianship) [2021] VCAT 196	

Order
Rehearing of application for reassessment of administration order 
About the application
VCAT has reheard the application for reassessment of the administration order dated 30 September 2020. 
VCAT orders that:
1	Having reheard the application dated 30 September 2020, I confirm the orders of DP Nihill dated 30 September 2020 save for varying the date by which the administration order must be reassessed to 8 March 2022.

Judge Hampel 
Vice President 			

APPEARANCES:		
QGL, represented person
TWL, QGL’s son
FWX, QGL’s son
HQD, QGL’s son 
WHW, HQD’s wife 
BIR, FWX’s wife 
GAP, TWL’s former partner
Ms S. Maloney, guardian, Office of the Public Advocate
Ms P. Lee, Office of the Public Advocate
Ms R. Aviles, State Trustees 
Ms J. Haitas, State Trustees 
Ms T. Winmar, VCAT Koori Support

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 published reasons for decision, I refer to the person who is the subject of the application as QGL. VCAT has given the person that anonymized name to protect their identity and the confidentiality of their personal information. I refer to her sons as TWL, FWX and HQD, TWL’s former partner as GAP, FWX’s wife as BIR and HQD’s wife as WHW. This is for the same reason, so that personal information remains confidential.
2	Administration orders have been in place for QGL since 2016. Between September 2016 and February 2017, State Trustees Limited (STL) was the appointed administrator. From February 2017 until September 2020 TWL was the appointed administrator. 
3	Guardianship orders had been made for QGL between September 2016 and October 2019. For some of that time the public advocate had been the Guardian. For the balance of the time TWL was the appointed guardian. Between October 2019 in September 2020, there was no guardianship order in place.
4	In December 2019, QGL signed an enduring power of attorney, granting TWL, with FWX as the alternate, power to do anything on her behalf that she could lawfully do by an attorney. After receiving a report from Dr Jambon, the psychiatrist who had been providing care to QGL during 2020, in relation to QGL’s capacity, the tribunal made orders in June 2020 declaring that the enduring Power of Attorney was of no effect.
5	Between January and July 2020, QGL had been living with, and being cared for by TWL and GAP. In July 2020, QGL was admitted to hospital. According to records from the hospital, TWL and GAP had separated, and she was no longer able to act as QGL’s primary carer. There were disagreements between QGL, TWL, his brothers, and the clinicians about where QGL should live when able to be discharged from hospital.   Some family members and the clinicians also expressed concerns about the suitability of TWL to administer QGL’s financial affairs. 
6	A clinician from a health service providing care for QGL applied for the appointment of a guardian for QGL. DP Nihill conducted a hearing on 23 July 2020. QGL was present, as were her sons FWX and HQD, the applicant clinician, and a hospital social worker. As QGL and her sons identify as indigenous, arrangements had been made for them to be supported by a member of the VCAT Koori support team.  TWL was not present.
7	DP Nihill made orders on 23 July 2020, appointing the public advocate to be a guardian for QGL, with power to make decisions about where she was to live. She amended the guardianship application to include an application for reassessment of the administration order, and referred the matter to the public applicant for investigation and report, pursuant to clause 35 (1) of schedule 1 to the VCAT Act. 
8	As TWL was not present at the hearing of 23 July, DP Nihill fixed a further hearing date for September, to consider the administration order.  
9	By the time of the September hearing, QGL was living in an aged care facility, as a result of a decision made by the guardian as to where she should live. Covid-19 restrictions meant QGL could not receive face to face visits from family members or the guardian or representatives of the Office of Public Advocate (OPA). Covid restrictions aside, TWL was prohibited from seeing QGL. Intervention orders had been made, preventing TWL from seeing QGL, and his brothers. 
10	Also, by the time of the September hearing, FWX had made written application for the administration order appointing TWL as administrator to be revoked, and for the appointment of a different administrator for QGL.  Although there was already a guardianship order in force, following the hearing of 23 July, FWX’s application also sought the appointment of a guardian for QGL. 
11	At the hearing on 30 September 2020, QGL, two of her sons TWL and FWX, GAP, the OPA guardian, and a member of the VCAT Koori Support team attended. QGL, who was then, as a result of the guardian discharging her responsibility to make decisions about where she was to live, living in an aged care facility, participated for part of the hearing. 
12	At that hearing, the Guardian reported on the investigation the OPA had conducted at the request of DP Nihill following the July hearing.
13	The investigation revealed
a.	In May 2020 TWL had withdrawn $25, 896.25 from QGL’s funds. QGL and TWL both described that withdrawal as a loan. TWL advised he had borrowed other sums from QGL, making the total loans from her to him $28,500. He said he was making monthly repayments and had repaid a total of $4,000 by the time of the hearing.
b.	TWL acknowledged he had continued to make withdrawals from QGL’s funds of $450 a fortnight for what he described as her half share of the rent, and for payment for utilities, since July. That is for the period of QGL’s admission to hospital and subsequent transfer (pursuant to the decision of the Guardian) to live in an aged care facility.
c.	TWL told the investigator he was unhappy with the guardianship order, as the decision to place QGL in care would cause financial hardship for him. He said no consideration had been given to the financial consequences for him of QGL being relocated to an aged care facility. That is, having to cover the whole of the rent and cost of utilities for his property.
d.	TWL said he opposed the appointment of STL as administrator because he did not agree with third parties being appointed to make decisions concerning his family’s affairs, and he did not want his mother’s estate depleted by the deduction of fees charged by STL for acting as administrator. 
e.	QGL told the OPA investigator she did not want TWL to look after her money. She said she wanted FWX to do so. She denied having been told by FWX to ask for him to be appointed administrator in place of TWL.
14	By the time the September hearing took place, QGL was living in an aged care facility. As Deputy President Nihill’s reasons of 30 November 2020 record, at the September hearing, QGL was mostly focused on that accommodation decision. When asked about her statement to the investigator that she did not want TWL to be her administrator, she had no comment. She was agitated, unsettled and became distressed. DP Nihill called a break, and the guardian spoke privately to QGL. When the hearing resumed, QGL did not return. 
15	At the September hearing, consistently with what was recorded in the investigator’s report TWL maintained there was nothing wrong in receiving a loan from his mother, because parents help their children. He said he had been upfront with his brothers about the loan and was making repayments. He said he was under financial pressure. He had high interest personal loans he had to repay. He said he felt he had been thrown under the bus by being left without QGL’s contribution to the rent and utilities for his house. He also expressed concerns about the fees that would be charged if STL were appointed administrator. He expressed his concern that STL fees would deplete his mother’s savings and there would be nothing left for her sons by the end of her life. 
16	At paragraph [30] of her written reasons, Deputy President Nihill noted
[30] At the time of the hearing, the financial decisions that needed to be made on behalf of QGL were complicated by the transition in QGL’s accommodation, and further complicated by the differences of opinion between family members about the best way for her money to be managed. QGL’s family all agreed that she needed an administrator, but no one apart from TWL thought he should be the person in that role. This was because others thought that TWL was or might have been letting his own financial needs and interests affect his decisions about QGL’s. TWL strongly disagreed with this, saying that he had done nothing wrong and that he should be allowed to continue in the role.
17	Deputy President Nihill found QGL had a disability, and that due to the disability she did not have capacity to make decisions about financial matters. She was satisfied QGL needed an administrator, because there were ongoing financial decisions that needed to be made, and which could not be made informally or by mediation or other means. She was satisfied that an administration order would promote QGL’s personal and social well-being, because an administrator would be able to ensure that her money was available to her and that her needs were met.
18	Deputy President Nihill concluded at paragraph [33]
[33] I decided that, at least for the short term, there was a need for an independent administrator. There were a lot of disagreements between family members about financial and other issues, including between FWX and TWL. It would, I decided, be very difficult at that time for any person to keep an impartial perspective on what decisions should be made for QGL, and not be affected by other considerations such as the disagreements, or TWL’s difficult financial circumstances, or the desire to preserve as much of QGL’s savings as possible for the future, beyond her life. I decided that only an independent administrator, at that time, could focus impartially on QGL’s immediate and long-term needs. The family were concerned, of course, to make sure that someone could provide for QGL all her immediate needs such as clothing, special food and other little necessities and pleasures. I was satisfied that STL would make sure to be in regular contact staff at the facility where QGL lives, and with family when they were able to resume visiting, so as to know what QGL needed and make sure she had money available for her.  
19	Deputy President Nihill revoked the order appointing TWL as administrator, and appointed STL as administrator. 
20	TWL requested written reasons for that decision. Those written reasons were published on 20 November 2020. 
21	TWL applied for a rehearing of the application to appoint an administrator.  FWX then applied for a rehearing of the application to appoint a guardian.
22	By section 150 of the Guardianship and Administration Act 2019, on a rehearing the senior, presidential or judicial member conducting it has all the functions and powers that the presiding member had with respect to the matter at first instance. The application must be considered afresh, and the same legal principles and criteria must be applied to the facts and circumstances as they currently are, at the time of rehearing.
23	At the commencement of the rehearing application, FWX advised the tribunal his intention was to apply for a rehearing in respect of the administration order, not the guardianship order. I treated his application therefore as one relating to the administration order, and the rehearing proceeded as one dealing with the administration order only.
24	Present at the rehearing were QGL, who was supported by a nurse from the aged care facility, her son TWL and his former partner, GAP, her two other sons, FWX and HQD and their respective wives BIR and WHW, the guardian and the investigator nominated by the OPA, and two representatives of STL. Again, QGL and her family were supported by a member of the VCAT koori support team.
Position of the parties
25	QGL participated in the hearing. She was at times tearful. She confirmed she understood what the hearing was about, namely who was to be the administrator of her finances, and she said she wanted TWL to be administrator. 
26	The guardian told the tribunal she had spoken to QGL twice recently. QGL said she wanted TWL to be the one that has the money and takes over the money, and that she wanted the intervention order dropped so he can come and see her. She said TWL rings her every second night and they talk for quite some time. She was upset about the fees STL charges, voiced generalised suspicions and distrust about STL and expressed concerns they would not pay for new teeth that she needed. When the guardian told her to speak to the nursing staff about her teeth, she appeared keen to follow that up immediately.
27	The OPA investigator has also spoken to QGL recently. QGL also told her she wanted TWL to help with her finances, and that she trusted him to pay back the money he had borrowed and look after her. She said TWL had told her if he became guardian and administrator, he would move her to another facility where she would have a room to herself with a view and an ensuite. When asked about STL and their administration she became agitated. She said they took her money, and was worried they would not pay for a new set of teeth. She believed she was being charged too much for the shared room she occupied in the aged care facility. When asked about her stated wishes in September 2020 to have FWX to look after her finances, she said she no longer wanted him to do so, because he’s got his own life.
28	Both the guardian and the OPA investigator said they were concerned, having regard to the different positions taken only a few months apart, in September 2020 and February 2021 by QGL about which son she wanted to have as her administrator, that QGL was susceptible to undue influence from family members. That concern was reinforced by the recent declaration by the tribunal that QGL did not have capacity to make the enduring power of attorney she had signed in favour of TWL and FWX in November 2019. 
29	The OPA investigator raised concerns that, by reason of the loan, and his financial position overall TWL’s interests conflict or may conflict with the interests of QGL.
30	The STL investigator reported that their investigations confirmed the findings of the OPA investigator in relation to the $28,000 loan by QGL to TWL, and that he had made repayments totalling $4,000. The investigator noted deductions from QGL’s funds for payment of half of the rent and utilities continued until STL’s appointment took effect in September 2020, although QGL had not returned to TWL’s home since she was hospitalised in July 2020. No further loan repayments had been made by TWL since STL was appointed administrator. TWL told the investigator he would not be making repayments to the loan while STL remained administrator, because STL charged commission. The administrator made a direct request to TWL in the hearing to repay the loan.
31	The STL investigator spoke to QGL on 24 February 2021. QGL told her, too, she wanted TWL to be her administrator. She again confirmed that she had lent him the money. She said that he was repaying every month, and that she trusted him, when he said “I wouldn’t do it to you [not repay the loan], you’re my mother”. 
32	The STL administrator advised that she had still been unable to verify all details in relation to QGL’s financial circumstances, as a result of TWL’s request for a rehearing of the administration order. It is STL’s understanding that based on QGL’s assets she will be required to pay a refundable accommodation contribution. The amount of that is yet to be determined as STL is still awaiting confirmation of her income and assets as at the date of entry into care. That is a precondition to submitting an income and asset assessment to Centrelink in order to determine the correct fees payable. 
33	The administrator advised that once Centrelink makes an assessment of the contribution, STL will then make its own assessment, on QGL’s behalf, of whether the assessed amount is fair and reasonable, and will if necessary advocate on QGL’s behalf to reduce the assessment. The administrator advised that if she is unable to obtain any further information from TWL or QGL, she will proceed to lodge the income and asset assessment with Centrelink with the information already to hand, in order to start the process for calculation of the contribution.
34	HQD said he did not believe TWL should be in charge of their mother’s money. He said he was happy for STL to be the administrator. WHW said they were worried QGL was being manipulated by TWL. They said they wanted her to be in place where she was happy, and that her money was available to pay for a decent place for her to live in. They wanted someone else, other than TWL to look after her finances in order to ensure that happened.
35	FWX said he believed it was better that an outside administrator, independent of the family was appointed. He said there were too many problems when one of the brothers has control of the mother’s money. BIR described the difficulties caused by the disagreements about where QGL should live, and who should look after her money as a nightmare. They agreed with HQD and WHW that STL should be the administrator.
36	HQD and WHW, and FWX and BIR referred to instances in the past where they believed TWL had not supported them when they were caring for QGL, or whether they believed TWL had not been acting in their mother’s best interests. They referred to their belief that TWL was manipulating their mother and wanting control of her finances in order to alleviate his own financial difficulties.
37	TWL took issue with what his brothers and their wives had said. He said it was a conspiracy and they hated him. He defended his care for his mother, and cited instances where he believed his brothers had not supported him when he was caring for QGL. So far as the loan was concerned, he again   said that he had done nothing wrong, that it was all in the open, documented in the bank accounts and disclosed to his brothers. He noted he had been filing administrator reports with the tribunal for the period of his of administration and no concerns have been raised.
38	GAP also supported the appointment of STL as administrator. She expressed her concern that TWL was in financial difficulties, and could use QGL’s funds to assist him out of his difficulties. She said it had been very difficult to care for QGL at home, but TWL had resisted her going into an aged care facility because he needed money. She said he had only two weeks ago tried to get her to forge QGL’s signature in order to allow him to access some of her money, but that she had refused.
39	TWL strongly refuted GAP’s allegations and repeated his belief that there was a conspiracy by his brothers and their wives and his former partner to get back at him. He said he had bent over backwards to look after QGL, without moral support from his family members. He maintained he had QGL’s best interests at heart.
Legal framework
General principles
40	Section 8 of the Guardianship Administration Act 2019 sets out the principles that a person (including the tribunal) exercising powers functions and duties under the Act, must have regard to. Relevantly for this application, they are that:
a.	a person with a disability should be provided with practicable and appropriate support to make and participate in decisions affecting them, to express their will and preferences and to develop their decision-making capacity. 
b.	the will and preferences of a person with a disability should direct as far as practicable decisions made for them; and
c.	powers functions and duties must be used in a way that is the least restrictive of the ability of a person with a disability to decide and act as is possible in the circumstances.
Will and preferences
41	In addition to these general principles, section 31 of the Act requires me to take into account QGL’s will and preferences when considering whether she is in need of an administrator. If satisfied she is in need of an administrator, s 32 requires me to take her will and preferences into account when deciding who should be the administrator. 
42	Despite QGL’s firmly stated position in September 2020, that she did not want TWL to be her administrator, and that she wanted FWX to be appointed her administrator, by February 2021, QGL had a different and equally firmly stated position. She no longer wanted FWX to be her administrator, but wanted TWL to fulfil that role. 
Disability and decision making
43	By s 30(2)(a) the Tribunal may only make an administration order if QGL has a disability, and because of that this the she does not have decision-making capacity in relation to financial matters.
44	On 26 June 2020 assessing psychiatrist Dr Jambon reported
[QGL] has long-standing mental health issues which include major depression, anxiety, somatisation and personality disorder (histrionic and borderline traits). In addition, she has cognitive impairment, likely mild intellectual disability, with a mini mental state examination score of 18/30 in February 2020.
[QGL’s] mental state and cognitive abilities are currently optimised. Further improvement to the point that [QGL] could manage her finances independently is not likely. She has periods of exacerbation of illness when her decision-making capacity worsens.
45	I am satisfied QGL has a disability, as a result of which she does not have capacity to make decisions about financial matters. 
Need for administrator
46	By s 30(2)(b), if satisfied a person has a disability and by reason of that disability does not have decision-making capacity, the tribunal must then satisfy itself QGL is in need of an administrator. Section 31 sets out the matters I must consider in determining whether a person is in need of an administrator.
47	Those matters are QGL’s will and preferences, whether decisions in relation to QGL’s financial matters could be made through informal means or through negotiation, mediation or other such options, the wishes of QGL’s family members  and others with a direct interest in the application and the desirability of preserving existing relationships that are important to QGL. 
48	As I have ready noted, QGL’s current will and preference is for TWL to be appointed administrator. Having regard to the evidence I have detailed in relation to the nature of QGL’s disability, the dissent between the sons about what is in QGL’s interests, the concerns of the OPA about the possibility of manipulation, and the results of the investigations conducted by the OPA and STL, I do not consider that decisions in relation to QGL’s financial matters can be made through informal means or through negotiation mediation or other such options.
49	All family members, as well as the guardian, OPA and STL support, and accept the need for the appointment of an administrator. There are rifts in the relationships between TWL, his brothers and their wives, and his former partner. The materials before me indicate the relationship between QGL and each of her sons, and their wives and partners, have ebbed and flowed. Appointment of an administrator will, in my view, assist in preserving relationships that are important to QGL.
50	At issue before me was not whether an administrator should be appointed, but whether STL, or TWL, or some other person, should be the administrator. 
51	In determining who should be the administrator, s 32(2)(b) provides the tribunal must be satisfied the person to be appointed is not in a position where the person’s interests conflict, or may conflict, with the interests of the proposed represented person. Section 32(5) makes it clear that the tribunal must not assume, without evidence, that a family member will or may have a conflict of interest by reason of that relationship.
52	In my view, on TWL’s account alone, he is in a position where his interests conflict, or may conflict with the interests of his mother. What I recount below, and rely on, comes solely from what TWL himself has told the tribunal, or STL. In coming to this conclusion, I have not taken into account any of the allegations made by his brothers, their wives or his former partner. 
53	The conflict, or potential conflict arises from the $28,000 loan. TWL borrowed money from his mother, when he was in a position of trust as administrator. In a succession of hearings since 2016, the tribunal had made findings QGL did not to have decision making capacity in relation to her financial affairs, and so, was in need of an administrator. In those circumstances, that QGL offered or agreed to lend such a substantial sum of money to TWL is irrelevant. 
54	Most of the loan is still outstanding, and despite his mother’s belief that monthly repayments are being made, TWL stopped making monthly repayments in September 2020 when STL was appointed administrator. 
55	TWL is, on his own account, a person experiencing financial difficulties.  Those financial difficulties were advanced by him as the reason for taking out the loan in May 2020.  He told the tribunal in September 2020 his financial difficulties were such that he may have to reduce, or completely suspend the loan repayments.  He told STL, and the tribunal, that he had not made repayments since September because he objected to STL charging fees for administration. Whether he stopped repayments because of his financial difficulties, or because he objects to STL’s fees makes no difference, in my view. The fact is, although his mother believes he is making monthly repayments, he is not, and has maintained he does not intend to do so for so long as STL remains as administrator.  
56	Further, TWL’s opposition to the appointment of STL is, at least in part, because STL charges fees. He told the tribunal in September of his concern that STL fees would deplete his mother savings and result in there being nothing left for her sons by the end of her life. 
57	This evidence demonstrates a conflict, or potential conflict between TWL’s own interests - borrowing from his mother, determining himself the terms on which he will repay, and preserving his mother’s assets for inheritance by her sons-  and QGL’s interests, in ensuring  her funds are available to her, to meet her needs. In particular, in ensuring she lives in the best available accommodation suitable to her needs, and with her needs able to be met from, or supplemented by moneys available to her.
58	Section 32(3) requires the tribunal to take into account, in determining whether a person is a suitable person to act as administrator, in addition to the will and  preferences of QGL, the desirability of preserving existing relationships that are important to her, the desirability of appointing a relative, or person who has a relationship with her, the availability of the person to communicate with her, and whether the person will act cooperatively with QGL’s guardian.
59	Even if I were not of the view TWL was precluded from appointment by reason of actual or potential conflict of interest, I do not consider any family member should be appointed as administrator. If anything, the need for an independent administrator is greater now than it was in September 2020. Apart from TWL, all family members were united in their support for an independent administrator. 
60	All family members, including TWL, referred to the history of family conflict when one or other family member had acted as administrator, had informally assisted QGL in the management of her financial affairs, or had cared for QGL in their own homes. Although all family members spoke respectfully throughout the hearing, that there was conflict, ill feeling, and distrust of each other’s motivation was clear. QGL was obviously distressed by the familial conflict. In my view, the desirability of preserving family relationships that are important to QGL far outweighs the desirability of appointing a relative as administrator. Put another way, appointment of a relative creates a real risk of adversely affecting QGL’s relationships with her sons, and her daughters in law, and her former daughter in law.
61	The tribunal must also take into account the need for the administrator to act cooperatively with the guardian. The guardian has responsibility for deciding where QGL should live. QGL told me, her guardian, the investigator from OPA and representatives from STL that TWL had promised he would transfer her to another aged care facility. That is not a decision he could make, even if he were appointed administrator. There is no evidence he has engaged in any discussions with the guardian, as the person responsible for deciding where QGL should live, about the suitability of the home where QGL currently lives, or whether there are better alternatives available. This does not give me confidence TWL would respect the boundaries between the authority and responsibility of the guardian and administrator, and work cooperatively with the guardian.
62	For these reasons, I conclude STL is the appropriate entity to be the independent administrator.
63	The orders of Deputy President Nihill, made on 30 September 2020 are confirmed, save for varying the date by which the administration order must be reassessed to 8 March 2022.

Judge Hampel 
Vice President