VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
GUARDIANSHIP LIST	
vcat reference No. G95212	
CATCHWORDS	
Guardianship List – application for appointment of supportive guardian and supportive administrator; application for appointment of a guardian and administrator; consideration of persons eligible to be appointed.
Guardianship and Administration Act 2019 (Vic) – sections 8, 30, 31, 32, 87.	

Represented person	SXZ	
WHERE HELD	Melbourne via teleconference 	
BEFORE	Senior Member B. Hoysted 	
HEARING TYPE	Hearing 	
DATE OF HEARING	1 April 2022	
DATE OF ORDER	1 April 2022 	
date of written reasons	24 June 2022	
citation	SXZ (Guardianship) [2022] VCAT 703	

Order
Appointment of guardian
VCAT orders that:
1	[RCK], [address redacted] and [NJT], [address redacted] are appointed joint guardians for [SXZ].
2	The guardians have power to make decisions about these personal matters:
-	where [SXZ] lives
-	whether any services are needed and if so which ones
3	Guardians must comply with the Guardianship and Administration Act 2019, which outlines their powers and duties.
Appointment of administrators
VCAT orders that:
4	[RCK], [address redacted] and, is appointed administrator for [SXZ].
5	[RCK] has power to make decisions about all financial matters other than an investigation in relation to whether there has been a misappropriation of funds or assets of [SXZ].
6	[RCK], as administrator, has powers given under the Guardianship and Administration Act 2019 sections:
-	46(1)
-	52
7	Lachlan Vallance Hicks Oakley Chessell Williams, level 18, 461 Bourke Street, MELBOURNE VIC 3000 is appointed as limited "investigative administrator" with powers and duties to investigate whether there has been a misappropriation of the funds or assets of [SXZ] and to provide a report to VCAT in relation to the investigation by 30 September 2022 including recommendations in relation to options for seeking recovery of any misappropriated funds or assets.
8	Lachlan Vallance, as investigative administrator has powers given under the Guardianship and Administration Act 2019 section:
-	46(1) (f) and (g)
9	Administrators must comply with the Guardianship and Administration Act 2019, which outlines their powers and duties.
10	[RCK] must complete and send to VCAT for approval a Financial Statement and Plan no later than 17 May 2022.
11	[RCK] must prepare an annual Account by Administrator. They must submit the first ABA:
-	for the accounting period: 01 April 2022 to 30 June 2023.
-	as soon as possible after 30 June and no later than 30 September 2023.
-	to be examined by State Trustees Limited, who may charge the estate an examination fee if VCAT approves.
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.
12	The administrator must not sell (dispose of) the represented person's real property without VCAT's permission.
13	The investigative administrator is entitled to be paid for the administration of the estate on the scale set out in the Practitioners' Remuneration Order. The administrator must send itemised invoices to VCAT for approval on a quarterly basis.
Each time the invoices are sent to VCAT, the investigative administrator must send copies to [RCK].
[RCK] to pay the invoices of the investigative administrator within seven days of approval by VCAT.
VCAT makes this order because it is satisfied that:
-	due to a disability, [SXZ] does not have capacity to make decisions about the personal and financial matters listed in this order,
-	[SXZ] needs a guardian and administrator, considering the factors set out in section 31 of the Act, including their will and preferences (what's important to them), and
-	this order will promote the personal and social wellbeing of [SXZ].
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 will reassess this administration orders no later than 31 December 2022.
17	VCAT will reassess this guardianship order no later than 31 December 2022.
Change of contact details
18	If the guardian, administrator or [SXZ] change contact details (email, phone or address), the guardian or administrator must immediately inform VCAT in writing.
Medical Treatment Decision Maker
19	VCAT records that [RCK] is the eldest adult child of [SXZ] and is available, willing and able to make medical treatment decisions for [SXZ]. Therefore, under section 55 of the Medical Treatment Planning and Decisions Act 2016, it appears that [RCK] is the medical treatment decision maker for [SXZ].

B. Hoysted
Senior Member			

APPEARANCES:		
SXZ, represented person
NJT, son of SXZ
RCK, daughter of SXZ
UMJ, son of SXZ
Mr H. McAvaney of Counsel for UMJ
Dr E. Brophy of Counsel for NJT and RCK
Dr T. Henderson, senior clinical neuropsychologist

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.

BACKGROUND
1	In these published reasons, I refer to the person who is the subject of the order as SXZ. The Victorian Civil and Administrative Tribunal (VCAT) has given the person that anonymized description to protect her identity and the confidentiality of her personal information. I refer to her son who lived with her as UMJ, her other son as NJT and her daughter as RCK for the same reason – so that personal information remains confidential.
2	SXZ is an elderly woman whose husband died in early 2015. In July 2021, she was assessed and evidence was found to suggest mild cognitive impairment. By December 2021, her condition had progressed, suggestive of a major neurocognitive disorder.
3	Aged in his forties, UMJ had always lived in the family home with his parents and then mother. He described himself as his mother’s carer. 
4	SXZ was admitted to hospital in June 2021 after a fall at her home. RCK gave evidence that her mother was in pain and that she tried unsuccessfully to persuade UMJ that SXZ should be taken to hospital. Nine days after the fall, SXZ was admitted to hospital where it was found she had two broken bones in her back.
5	While she was in hospital, NJT and RCK sought advice about what they believed was neglect and abuse of SXZ by UMJ. In her affidavit, RCK stated that she and NJT “were stymied by the fact that our mother was basically a prisoner in her own home and [UMJ] controlled access to her”.
6	In November 2021, NJT and RCK made applications for Intervention Orders claiming that UMJ was committing family violence against them and their mother. RCK’s application was dismissed however an interim Intervention Order was made naming NJT and SXZ as protected persons. Given the terms of the Order, Police arranged for SXZ to be admitted to Rosebud Hospital for respite care. SXZ was subsequently transferred to the Mornington Centre for discharge planning and she remained there during the course of the proceedings before VCAT.
7	VCAT received two applications relating to SXZ. UMJ applied to be appointed as supportive guardian and supportive administrator for SXZ and NJT and RCK applied to be appointed as guardians and administrators. 
8	In December 2021, the interim Intervention Order, in so far as it related to SXZ was revoked because she had not consented to the application made about her and NJT lacked authority to make an application on her behalf. 
9	The matter first came before VCAT on 17 January 2022. At hearing, VCAT received reports which indicated that SXZ lacked capacity. The proceeding was adjourned so that the Office of the Public Advocate (OPA) could conduct an investigation and provide a report to VCAT and so that the parties could consider the latest reports about SXZ’s decision-making capacity.  
10	Mr Dean Madden of OPA gathered information and his report was provided to the parties ahead of the hearing.
11	The matter first came before me on 4 March 2022. UMJ was represented by Mr Hamish McAvaney of Counsel and NJT and RCK were represented by their solicitor, Mr David Littlejohn. The OPA investigator recommended the appointment of an independent guardian and administrator. Mr Littlejohn for NJT and RCK submitted that his clients should be appointed as decision makers for their mother, noting the preference within the legislation for appointing a family member. Both lawyers agreed that while the reports indicated a lack of decision-making capacity, the reports lacked the identification of a disability as defined within the Guardianship and Administration Act 2019 (Vic) (GA Act). I agreed to a further short adjournment so that a neuropsychologist could conduct an assessment and provide a report and then attend the next hearing to answer any questions. The parties were given an opportunity to submit for the neuropsychologist’s consideration material they considered to be relevant. Counsel for UMJ stated that his client intended to file additional responses to the allegations made by NJT of financial mismanagement.
12	On 1 April 2022, I conducted the final hearing. UMJ was again represented by Mr McAvaney and NJT and RCK by Dr Elizabeth Brophy, also of Counsel. Dr Tracey Henderson, senior clinical neuropsychologist, attended the hearing. Her report dated 17 March 2022, spoke to her assessment of SXZ conducted on 13 March 2022. Dr Henderson was able to compare results of psychometric tests she had conducted to earlier neuropsychological test results, consider relevant background information including medical information and results of neuroimaging and conclude that SXZ met the diagnostic criteria for a major neurocognitive disorder. 
13	SXZ attended both hearings before me. On both occasions, SXZ was keen to tell me that she wanted to go home and that she wanted UMJ to be her guardian. Having considered the sworn evidence filed, submissions from the lawyers and the views of SXZ herself, I stood the matter down briefly so I could review my notes before delivering my decision and oral reasons.
14	By email dated 5 April 2022, Mornington Peninsula Legal Service for UMJ applied for written reasons for my decision. These written reasons are a slightly expanded version of my oral reasons given on 1 April 2022, are written from my notes taken at the hearings with references to submissions and materials filed by the parties and the relevant legislation.
MATTERS FOR CONSIDERATION
Was SXZ affected by a disability which causes her to lack decision-making capacity?
15	By the time of the final hearing, I had the benefit of a report from Dr Henderson, senior clinical neuropsychologist, who assessed SXZ over two sessions on 11 March 2022. Dr Henderson reported that she had considered reports from previous neuropsychological assessments, reports from consultant geriatrician, Dr K Siostrom, reports from the senior social worker, physiotherapist, occupational therapist and the Peninsula Health medical file as well as background information provided by the lawyers for the parties.
16	Dr Henderson reported that SXZ presented as a vague historian for recent events and was highly repetitive in conversation and, at times, was highly distressed. Despite receiving written and verbal instruction the day before the assessment, SXZ had been unable to recall why she was in hospital or how long she had been there or what her care needs were. Dr Henderson discussed the allegations of neglect and abuse and SXZ steadfastly denied all allegations made against UMJ. Compared to 2021 test results, Dr Henderson reported evidence of a decline in performances in aspects of executive functioning and working memory (falling from average to extremely low).
17	Based on the treating team’s knowledge of SXZ over an eight-month period, repeat neuropsychological testing, the results of neuroimaging and her limited psychometric testing as well as the absence of delirium or a primary mental health disorder, Dr Henderson reported that her findings were consistent with a mixed dementia presentation with contributions of Alzheimer’s disease and cerebrovascular disease. Dr Henderson said:
It is my opinion that although [SXZ] has some awareness regarding her physical limitations and needs for assistance, as well as general awareness that there is family conflict, by virtue of her cognitive disability she does not have the ability to fully understand or retain information relevant to the decisions at hand (e.g. she does not recall details from day to day). She is therefore unable to use all the relevant information as part of decision-making processes, for both personal and financial decisions.
18	Dr Henderson went on to opine that SXZ lacked the capacity required for a supportive guardian or administrator or to appoint a power of attorney.
19	In response to specific questions posed by NJT and RCK, Dr Henderson responded that in her opinion, SXZ’s cognitive deficits increased her vulnerability to undue influence and made her “unable to use all relevant information as part of decision-making processes, which includes who makes decisions for her, where she lives and with whom and who she has contact with”.
20	I was satisfied that SXZ was affected by a disability, namely dementia, which caused her to lack the required capacity to make decisions about her financial and personal affairs.
21	I was also satisfied that because of her lack of decision-making capacity, SXZ would not qualify to have a supportive guardian or administrator appointed.
Did SXZ need an administrator?
22	Mr Madden reported that SXZ was a self-funded retiree who owns three properties. He noted that SXZ had significant assets including cash monies, that she was no longer aware of and that UMJ had been managing his mother’s finances in an informal capacity. Bank records showed what Mr Madden described as a “rapid decline in funds” and the Westpac Bank had apparently placed a stop on SXZ’s accounts due to the bank’s suspicions of financial abuse. 
23	UMJ denied using his mother’s funds for his own purposes. He said that SXZ paid him for his care, food and lodgings. At the hearing on 4 March 2022, UMJ made no admissions and his Counsel indicated that his client would file additional information before the final hearing which would explain the large number of withdrawals made by UMJ. No additional evidence was filed by UMJ before the final hearing.
24	Counsel for UMJ disputed that it had been established that there was a need for an administrator but said if there was to be an administrator appointed, then UMJ sought to be appointed or, in the alternative, State Trustees Limited. At the final hearing, UMJ did concede that an investigative administrator should be appointed. Counsel for UMJ also noted that Dr Brophy for UMJ’s siblings, had conceded that of the $350,000 withdrawn from SXZ’s accounts, some had been used to pay land tax owed by SXZ. UMJ also noted that the further enquiries by Mr Madden had confirmed that SXZ’s term deposit with the Commonwealth Bank was intact. UMJ maintained his denial of financial abuse of SXZ. UMJ accepted the opinions of Dr Henderson that his mother was affected by a disability which caused her to lack decision-making capacity.
25	Finally, Counsel for UMJ, noted that NJT was also living rent free in a separate property owned by SXZ and that she was also paying outgoings on that property.
26	Dr Brophy for NJT and RCK submitted that it was open to VCAT to appoint two administrators concurrently and to that end, noted the nominations as RCK for all financial matters concurrently with Lachlan Vallance as investigative administrator with powers and duties to investigate and report on whether there has been misappropriation of SXZ’s funds and, if there had been, whether those funds were recoverable.
27	I was satisfied that SXZ needed to have an administrator appointed and that the appointment of an investigative administrator with specific tasks and powers concurrently with an administrator to manage the represented person’s financial affairs would serve her well. It was evident that there were missing funds that needed to be quantified and traced, as well as day to day matters including arrangements made for unpaid land tax, two residential properties and a vacant block of land to be managed and plans needed for the cost of SXZ’s care wherever that might be provided. These were all matters that SXZ was not able to manage herself and because there were no powers of attorney in place, it was clear that an administrator was needed.
Did SXZ need a guardian?
28	The physiotherapist and occupational therapist had each submitted reports which expressed their respective professional opinions that SXZ required 24/7 supervision and care. 
29	SXZ told Mr Madden that she wanted to go home and be cared for by UMJ. She said that she would agree to more services if that meant she could go home.
30	UMJ agreed with Mr Madden that a guardian was required in order to decide living arrangements including services.
31	NJT and RCK also agreed that a guardian was required limited to decisions about SXZ’s accommodation and services.
32	SXZ wished to return home and a decision needed to be made about whether that was possible or whether it would be likely to result in harm to her.
33	I was satisfied that there was a need for a guardian to be appointed to make decisions about accommodation and services. I noted that there was no enduring power of attorney in place and it was clear that decisions could not be made by SXZ and her family through informal means or negotiation.
SXZ’s will and preferences about who should be appointed
34	At both hearings I spoke with SXZ. SXZ repeated multiple times that she wished to return to her home to live with UMJ and she wanted UMJ to be her guardian. It was confirmed by the social worker with her at the time that SXZ was reading from a notebook. NJT filed an affidavit in which he attested that he had seen the notebook when visiting his mother and he recognised the handwriting on the note read to me by his mother as being that of his brother, UMJ. NJT submitted that this was an example of UMJ’s exercising coercive control over their mother.
35	In the same affidavit, NJT reported that the nurse managing the unit where his mother was being cared for had reported to him that UMJ had been overheard telling his mother not to allow RCK or NJT to visit her.
36	UMJ submitted that he should be appointed as both guardian and administrator for his mother because he had extensive experience as her carer and his wishes align with hers. According to UMJ, it was the actions of NJT in seeking an Intervention Order that caused SXZ to be deprived of her primary carer. He further claimed that RCK and NJT were a team and neither could not act independently. To appoint them, would be to further strain family relations. UMJ claimed to have sufficient knowledge of his mother’s finances to make him a suitable candidate to be appointed as administrator. The least worst option, according to UMJ would be to appoint an independent guardian and administrator.
37	According to Dr Brophy, UMJ could not be appointed as administrator given the allegations made against him and the absence of any plausible response despite his assertion at the March 2022 hearing that he would file further explanatory material.
38	Dr Brophy noted that SXZ’s will and preferences needed to be determined in accordance with sections 8 and 32 of the GA Act. According to Dr Brophy, VCAT should not accept SXZ’s stated preferences to appoint UMJ as being voluntary or free from UMJ’s influence. I accepted the submission that SXZ’s stated will and preferences were affected by her lack of understanding of the issues and her reliance on and vulnerability to UMJ’s influence and that she was vulnerable, if left to her own devices, to act against her own self interests.
39	I accepted that I was not bound by SXZ’s stated will and preferences about who she wanted appointed as her guardian and administrator. Section 8 of the GA Act, which applied to me as the presiding member, noted that SXZ’s will and preferences should direct, as far as practicable, decisions made for that person. I noted the considerable evidence of UMJ coaching his mother about what to say to VCAT and Dr Henderson’s opinion that her inability to fully understand and retain information relevant to specific decisions included who makes decisions for her and where and with whom she lives.
40	I noted that while UMJ claimed that his mother did not want contact with RCK and NJT, she had instructed that NJT’s name be added to the list of visitors and had accepted regular visits to her by RCK and NJT during her stay at the Mornington Centre.
41	I accepted the submission by Counsel for NJT and RCK that the GA Act notes that it is desirable to appoint a person who is a relative of the proposed represented person rather that appointing a person with no such relationship.
42	In appointing RCK as administrator, I noted the absence of any evidence from UMJ that RCK had any interests that were in conflict with those of her mother.
43	In appointing RCK and NJT as joint guardians, I noted their assurances that RCK could and would communicate with UMJ, their understanding of the responsibilities of the role and the legislation under which they were appointed and their assurances that they would be readily available to SXZ. I noted that they did not seek the authority to exclude UMJ from contact with their mother.
Final observations
44	The parties had the benefit of competent legal representation at the two hearings before me and in the preparation of materials upon which they relied.
45	I considered the appointment of an investigative administrator to investigate the significant depletion of SXZ’s funds to be prudent. That task being undertaken by an experienced lawyer who is independent of the parties might minimise the risk of further damage to the familial relationships.
46	By the time of the second hearing, all parties agreed and I was satisfied that SXZ was affected by a disability which caused her to lack decision-making capacity in relation to both personal and financial matters. There was agreement also that SXZ needed a guardian and administrator. The only issue in dispute was as to who should be appointed.
47	I acknowledge that I have attached reduced weight to SXZ’s stated will and preferences about who she wanted appointed and believe I have explained my rationale.

48	Finally, I made what I considered to be cautious orders. By that I mean, an independent and professional administrator was appointed to investigate and report on the allegations of financial impropriety; I was satisfied that I appointed persons who understood their legislative responsibilities and who were not conflicted and would seek the advice of VCAT if required; the guardians were given very limited authority and all appointments are to be reassessed by 31 December 2022.

B. Hoysted
Senior Member