VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
GUARDIANSHIP LIST	
vcat reference No. G91260	
CATCHWORDS	
Enduring power of attorney – whether a breach of duties by attorney – application to revoke, vary or suspend an enduring power of attorney – application for guardianship and administration orders	

principal/Proposed represented person	NVX	
WHERE HELD	Melbourne via teleconference 	
BEFORE	Member M. Cameron 	
HEARING TYPE	Hearing	
DATE OF HEARING	4 May 2021	
DATE OF ORDER	4 May 2021	
date of written reasons	11 June 2021	
citation	NVX (Guardianship) [2021] VCAT 586	

Order
About the application
On 01 August 2017 the principal [NVX] gave an enduring power of attorney for personal and financial matters, and an enduring power of attorney for medical treatment to the attorney [HYG].
[JDB] applied to VCAT for orders about the powers of the attorney [HYG].
VCAT orders that:
The application for orders in relation to the Enduring Powers of Attorney is dismissed.
VCAT orders that:
The application for a guardianship order and an administration order is dismissed.

VCAT makes this decision because:
VCAT is not satisfied that the requirements of the Guardianship and Administration Act 2019 for the appointment of a guardian or administrator have been met in this application.

M. Cameron
Member			

APPEARANCES:		
NVX, principal/proposed represented person
Ms S. Abalardo, Office of the Public Advocate 
HYG, son of NVX
HYG’s son
TMJ, son of NVX
JDB, daughter of NVX
JDB’s husband 

Reasons
The Victorian Civil and Administrative Tribunal (VCAT) is providing these reasons on a confidential basis. Clause 51AJ 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 Powers of Attorney Act 2014 that identifies or could lead to the identification of a party to the proceeding.

1	NVX is a 91-year-old woman who migrated to Australia from Italy in 1965. She was widowed in 1988 and has three children, being her sons TMJ and HYG, and her daughter JDB.
2	NVX lives in an aged care facility in Brunswick as a permanent resident since March 2020. Before that she had been living on her own in a unit and had also spent periods of time living with each of her children. 
3	NVX gave an enduring power of attorney (personal and financial) and an enduring power of attorney (medical treatment) to her son HYG on 1 August 2017.
4	On 4 August 2020, NVX’s daughter JDB made an application to VCAT seeking orders in relation to the enduring power of attorney (personal and financial matters). JDB also applied for an administration order in respect of NVX.  
5	In her application for orders about the enduring power of attorney (personal and financial), JDB stated that her reason for making the application was that her mother NVX wanted to move out of the aged care facility where she was living, and that JDB supported this, and that JDB was concerned that her brother HYG who holds the enduring power of attorney for NVX might be exercising those powers for his own benefit rather than solely for the benefit of NVX.
6	In her application for the appointment of an administrator for NVX, JDB stated that her reason for making the application was that NVX is incapable of looking after her own financial affairs, but is capable of living on her own, and that JDB supports her to do so.
7	Following JDB’s application, on 22 October 2020 HYG also made an application for a guardian and/or an administrator for NVX. In his application HYG states that the enduring powers of attorney should continue, but alternatively, if there is a need for a guardian or administrator for NVX then he should be appointed.
8	At the first hearing of this matter on 13 October 2020, the presiding member amended the application of JDB to include an application for guardianship. VCAT adjourned the proceedings to enable the Public Advocate time to complete an investigation and report to the Tribunal. The matter was to be relisted before VCAT on completion of the Public Advocate’s investigation and report. 
9	At the first hearing on 13 October 2020, VCAT further ordered that HYG would send JDB full copies of the bank account statements of NVX, and if applicable the bank account passbook entries, from 1 August 2017 to the date of the order (that is, for the duration of the period for which he has been NVX’s attorney) and that HYG would provide the Tribunal with a current medical report in relation to the disability and capacity of NVX, with VCAT to provide the report to the Public Advocate for consideration.
10	Sara Abelardo, an investigator with the Office of the Public Advocate (OPA), completed her investigation and report on 29 January 2021. 
11	I commenced hearing the matter on 17 March 2021, but adjourned the proceedings on that date because NVX had expressed her wish to participate in the hearing and required the assistance of an Italian interpreter to do so.
12	The hearing was listed to resume before me on 4 May 2021. I also received a number of written submissions and affidavits from the parties and the investigation report from OPA. 
13	The hearing was conducted by teleconference, at which NVX attended in person and was assisted by an Italian interpreter. NVX’s daughter JDB and JDB’s husband attended in person, as did HYG who is NVX’s son and attorney together with HYG’s son, TMJ who is NVX’s elder son, and Ms Abelardo of OPA.
THE OPA REPORT
14	Ms Abelardo referred to the orders of the Tribunal made on 13 October 2020, recording that HYG had provided JDB with copies of bank account statements of NVX as ordered, and that a medical report was provided to the Public Advocate on 22 January 2021 and subsequently also provided to VCAT.
15	Ms Abelardo’s report lists the questions the Public Advocate was asked by VCAT, and provides a response to each of them. The questions are:
a	Does NVX have a disability affecting her decision-making capacity in relation to any of the following personal/financial matters:
i	Accommodation.
ii	Services.
b	Is there a need for a guardian considering the factors in section 31 of the Guardianship and Administration Act 2019 (GA Act)?
c	Is there a need for an administrator considering the factors in section 31 of the GA Act?
d	What is NVX’s will and what are her preferences?
e	Will the proposed order promote the personal and social wellbeing of NVX?
f	Could NVX make decisions with the support of a supportive guardian?
g	Could NVX make decisions with the support of a supportive administrator?
h	Does NVX want to attend the hearing?
i	Is the attorney complying with the provisions of the Powers of Attorney Act 2014 (PA Act)?
16	Ms Abelardo’s report and her evidence at hearing summarise her investigations with each person she spoke with, and address the question of NVX’s decision-making capacity. This includes discussions with NVX and each of her children.
17	The recommendations and response to the referral from the Public Advocate state that medical reports indicate that NVX has advanced dementia and does not have decision-making capacity (even with support) in respect of medical treatment, general living circumstances, or financial and property affairs.
18	The OPA investigation found that NVX’s will and preference indicated that she would like to live in her own unit, but given her dementia and level of her care needs it appears unrealistic that she could return to independent living. It further finds that NVX appears to be happy and settled at her aged care residence, though this is disputed by JDB.
19	The OPA report finds that there do not appear to be any decisions needed for NVX’s accommodation or services because NVX is settled and happy in her place of residence, and in the event that decisions need to be made, then HYG is able to make them in his capacity as her financial and personal attorney.
20	As noted, NVX appointed her son HYG as her financial and personal attorney in 2017. The OPA investigation found no evidence indicating that there are any concerns about HYG’s management of NVX’s finances, and therefore there does not appear to be a need for an administrator.
21	The recommendations of the Public Advocate are that VCAT dismiss the applications for the appointment of a guardian and the appointment of an administrator, and dismiss the application for orders in relation to enduring powers of attorney. The Public Advocate records that this proposed order will promote the personal and social wellbeing of NVX in that her accommodation at the aged care facility, and HYG’s continued management of her affairs, appear to reflect her will and preferences.
SUBMISSIONS OF THE PARTIES
22	JDB provided written submissions and other documents to VCAT, including Transfer of Land records relating to dealings between NVX’s family members in 1996, Commonwealth Bank records, medical records of NVX, general information about Risperdal medication, general information about COVID-19 related concerns for persons in aged care and some email correspondence between herself and the aged care facility, numerous family photographs, and a letter to her from a solicitor.
23	JDB’s submissions are lengthy, and include material that is not relevant to these proceedings, including submissions about family conflict and about the behaviour and conduct of her brother HYG over many years, including before he was given powers of attorney and when NVX had capacity to make her own decisions. JDB and her husband both spoke about the ownership arrangements of a unit owned by NVX and her children dating back to 2007 or 2008, many years before NVX lost decision-making capacity and HYG was appointed as attorney.
24	JDB gave other examples of what she believes to have been misuse of the power of attorney by HYG, including what she considers unnecessary or inflated withdrawals of money from NVX’s bank accounts, ongoing payment for an Italian television subscription during a period when NVX was not living with HYG, and HYG taking NVX to Las Vegas and allowing her to gamble while he and NVX were on holiday in North America.
25	According to JDB, HYG obtained the enduring powers of attorney by devious methods, and NVX would not have understood what she was signing. JDB says that HYG has used the powers of attorney for his own advantage. She says HYG has been verbally abusive and threatening to JDB, particularly when JDB attempted to assist NVX to pack her belongings and leave the aged care facility with her.
26	JDB considers that HYG forced NVX to enter residential care against her wishes, and she should be able to return home, or go and stay with JDB. JDB alleges that HYG is not doing what is best for NVX, and the powers of attorney should be revoked and JDB appointed guardian. 
27	When discussed at the hearing, JDB conceded that NVX’s health was now such that she is not able to make a decision about where she should live. JDB says that NVX’s health has deteriorated in aged care. JDB said that this had not been the case at the time NVX was admitted to aged care, and she should not have been. 
28	JDB says that HYG had originally arranged for NVX to go into aged care only for six weeks but later changed his mind and made the arrangement permanent. This was despite JDB suggesting that NVX could come and live with her or that a small unit be bought near to her and furnished for NVX to live there. JDB says this was because her brothers did not wish to spend money on that arrangement.
29	JDB said that she challenges the veracity of the OPA investigation and report. 
30	Ms Abelardo told me that she considered the investigation to have been exhaustive. I thought the report to be thorough in addressing the questions that were asked by VCAT.
31	HYG provided the Tribunal with detailed submissions and a lot of material about family relationships and events over many years, and particularly about his mother NVX and his role as her primary support and carer over the 30 years since NVX’s husband passed away.
32	Relevantly, HYG says that as NVX aged, she thought it appropriate that she should make a power of attorney in case she came to lose capacity to make her own decisions.
33	Therefore, on 1 August 2017, NVX instructed Tartaglia Lawyers to prepare deeds both of enduring power of attorney (medical treatment) and enduring power of attorney (financial) appointing HYG in both roles. The lawyers explained the effect of the appointments to NVX and, according to HYG, NVX understood this. Copies of the enduring powers of attorney have been provided to VCAT.
34	When speaking with the OPA investigator, NVX said that she wanted HYG to look after her financial affairs and she repeated this to me at the VCAT hearing.  
35	At the hearing, I asked NVX if she understood that she had made HYG her power of attorney, and she said that she did. At JDB’s request I asked that question in more simple terms and NVX said she understood that she had appointed HYG to manage her financial affairs. She said that she wants this arrangement to continue.
36	HYG has said that in the period after the powers of attorney were given to him, NVX had suffered a fall and her health began to deteriorate, and she needed increasing assistance with personal care, and had difficulty accessing her home. She began to rotate her time staying in the homes of her three children, one week at a time. 
37	In February 2018, NVX had an aged care assessment, after which she was approved by My Aged Care for low level residential respite and permanent residential care, but notwithstanding this the family decided to continue to assist NVX to avoid her entering residential care at that time, although her Aged Care Assessment clinician had explained that living between three houses was likely to become confusing for NVX as her dementia progressed. The Aged Care Assessment Care Service assessment has been provided to VCAT.
38	HYG says that in 2019, the living arrangements became untenable and NVX returned for a while to her own unit. She wanted to go on holiday to Canada and the USA to visit family, and HYG accompanied her on that trip, but her health and cognition continued to decline. NVX was hospitalised in February 2020 and then discharged into residential care on a respite basis. According to HYG it was upon observing NVX’s health and wellbeing to improve significantly during this time that HYG made the decision that it was best for NVX to remain in residential care.
39	HYG says that in June 2020, NVX was assessed to have diagnoses including depression, dementia, cognitive impairment, functional decline, low mood, osteoarthritis and urge incontinence. By October 2020, NVX was demonstrating behaviours including refusal to take medication; physical aggression towards staff and other residents; telling other residents what to do; entering other residents rooms and toilets; telling residential care staff that she is their boss; shouting at other residents and interfering with their meals; attempts at hitting staff with her walking stick and chasing them with a fork, and blocking the lift doors with chairs.
40	HYG has given VCAT a number of reports from the aged care facility, medical reports and treatment records of NVX.
41	HYG says it was based on medical opinion that NVX was placed in residential care and later, because of the behaviours of NVX, and also based on medical advice, the facility recommended the use of anti-psychotic medication to sedate NVX, to which HYG agreed. 
42	HYG told me that, given NVX’s condition it is important that she remain in residential aged care.
43	HYG has been provided with a copy of JDB’s submissions to VCAT, and he objects to her suggestion that she be appointed in any role for NVX. He strongly disagrees with her submission that NVX can live independently.
44	According to HYG, JDB has not been closely involved with NVX, for whom HYG has been the primary support and carer for some 30 years. There is a history of conflict between NVX and JDB.
45	HYG records that JDB tried to remove NVX from her aged care facility in August 2020, causing the facility to call the police and advise JDB that she may not visit the premises.
46	HYG seeks to remain as NVX’s enduring power of attorney to promote her wellbeing and to protect her. 
47	NVX’s elder son TMJ also wants HYG to continue as enduring power of attorney for NVX, and he supports as essential the need for NVX to reside in residential aged care. 
48	TMJ opposes the appointment of JDB is any role for NVX. He believes that HYG has always properly managed NVX’s financial and property affairs and has not personally benefitted from being her attorney.
49	NVX’s grandson (HYG’s son), told me that he considers JDB’s applications to be without merit, as his father HYG has fulfilled his role as attorney for NVX with propriety and care, as has been confirmed by the OPA investigation and report. NVX also opposes the appointment of JDB in any role for NVX.
RELEVANT LAW
50	Section 21 of the PA Act contains the principles for decision-making under the PA Act. It relevantly provides:
(1)	If a person is exercising a power, carrying out a function or performing a duty under this Act for a principal under an enduring power of attorney who does not have decision making capacity in relation to one or more matters, the person—
(a)	must do so in a way that is as least restrictive of the principal's ability to decide and act as is possible in the circumstances; and
(b)	in doing so must ensure that, the principal is given practicable and appropriate support to enable the principal to participate in decisions affecting the principal as much as possible in the circumstances.
(2)	If an attorney under an enduring power of attorney is making a decision about a matter on behalf of a principal who does not have decision making capacity in relation to that matter, the attorney must—
(a)	give all practicable and appropriate effect to the principal's wishes; and
(b)	take any steps that are reasonably available to encourage the principal to participate in decision making, even though the principal does not have decision making capacity; and
(c)	act in a way that promotes the personal and social wellbeing of the principal, including by—
(i)	recognising the inherent dignity of the principal; and
(ii)	having regard to the principal's existing supportive relationships, religion, values and cultural and linguistic environment; and
(iii)	respecting the confidentiality of confidential information relating to the principal.
51	Section 63 of the PA Act sets out the attorney’s duties thus:
(1)	An attorney under an enduring power of attorney—
(a)	must act honestly, diligently and in good faith; and
(b)	must exercise reasonable skill and care; and
(c)	must not use the position for profit, unless permitted under section 70; and
(d)	must avoid acting where there is or may be a conflict of interest unless the attorney is authorised by the power, the principal or VCAT; and
(e)	must not disclose confidential information gained as the attorney under the power unless authorised by the power or by law; and
(f)	must keep accurate records and accounts as required by section 66.
(2)	Nothing in this section is to be taken to affect any duty an attorney has at common law. The Member hearing the matter in May revoked OVV’s appointment under the power of attorney. OVV says that VCAT does not have power to do so.
52	The PA Act gives VCAT wide powers to oversee many issues relating to an enduring power of attorney.
53	Section 120 of that Act also gives VCAT specific power to revoke or vary or suspend all or part of an enduring power of attorney and also to revoke the appointment of an attorney under the enduring power of attorney.
54	The revocation of appointment of an attorney is provided for in section 120(b). If this course is taken, the particular attorney whose appointment is revoked ceases to hold that position, but the power of attorney itself remains.
55	The authority of the Tribunal to make orders about an enduring power of attorney only arises where the principal no longer has decision-making capacity to make the directions personally.
56	Section 120(2) provides:
Before making an order under subsection (1)(b) to revoke the appointment of an attorney under an enduring power of attorney VCAT must be satisfied that—
(a)	the attorney is not complying with provisions of this Act that relate to enduring powers of attorney; and
(b)	the principal does not have decision making capacity in relation to making an enduring power of attorney giving the same power.
57	Based on the medical reports, I am satisfied that NVX now lacks the capacity to make or revoke a power of attorney, to appoint a medical treatment decision maker, to make decisions about where she is able to live, what services she needs, who she sees and when, and her medical treatment.
58	I have considered all of the information given to me by the parties and by OPA. 
59	I accept and adopt OPA’s findings as set out in the investigation report and addressed by Ms Abelardo at the hearing.
60	I am satisfied that NVX’s wishes as expressed in the enduring powers of attorney dated 1 August 2017 in relation to her financial affairs and the enduring power of attorney (medical treatment) of the same date should not be disturbed. 
NEED FOR AN ADMINISTRATOR
61	Section 30(2)(b) of the GA Act says VCAT may only appoint an administrator or a guardian for a person if satisfied that the person needs an administrator or guardian.
62	The enduring powers of attorney executed on 1 August 2017 included both financial and personal matters. JDB’s expressed concerns about HYG’s management of NVX’s finances are not borne out by the evidence provided, and no concerns were identified in the course of the investigation by OPA.
63	NVX told me that she wants HYG to manage her financial affairs.
64	In these circumstances, there is not a need for the appointment of an administrator.
NEED FOR A GUARDIAN 
65	The Tribunal also cannot appoint a guardian unless the need is established.
66	Since March 2020, NVX has been living in a residential aged care facility, where she now seems settled. She told me at the hearing that she wants to stay where she is. She receives the services she needs at the facility where she lives. She has received medical treatment as needed upon the recommendation of her treating doctors. 
67	There is nothing to suggest that any decisions presently need to be made for NVX’s accommodation or her support services, or her medical treatment, and if any arise HYG is able to make them as NVX’s attorney.
68	In these circumstances, there is no need for the appointment of a guardian for NVX.
THE WILL AND PREFERENCES OF NVX
69	The clearest expression of the will and preference of NVX are the enduring powers of attorney she made on 1 August 2017.
70	In them she appointed her son HYG as her attorney for financial and personal decisions, and for medical treatment decisions. She did so in the knowledge that she had a medical condition that would come to impact on her ability to make decisions. She excluded JDB and TMJ, and chose HYG to take on these roles because of her relationship with him over many years.
71	Overall, I was not persuaded that the attorney was in breach of his duty to the principal in any way. The attorney, as far as I could find, has been and is acting honestly. He is not profiting from his position as attorney and his interests are not in conflict with those of the principal.
72	For these reasons, the application for orders in relation to the enduring powers of attorney is dismissed.
73	In this case, NVX does not need an administrator or guardian because the less restrictive option of the enduring powers of attorney is available. 
74	For these reasons, the applications for the appointment of an administrator and guardian are dismissed.

M. Cameron
Member