Guardianship Decision in VCAT

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

HUMAN RIGHTS DIVISION

GUARDIANSHIP LIST

VCAT REFERENCE NO. G92843

Link to the case on Austlii

CATCHWORDS

Guardianship List – application for orders about enduring power of attorney, application for guardianship order and administration order –whether a guardian and an administrator needed – relevant principles under the Act –Powers of Attorney Act 2014 (Vic) section 21, 63, 120, – Guardianship and Administration Act 2019 (Vic) section 30.

PRINCIPAL/PROPOSED REPRESENTED PERSON: VNH

WHERE HELD: Melbourne via teleconference

BEFORE MEMBER: Member C. Thwaites

HEARING TYPE: Hearing

DATE OF HEARING: 29 November 2021 and 28 January 2022

DATE OF ORDER: 28 January 2022

DATE OF WRITTEN REASONS: 13 April 2022

CITATION: VNH (Guardianship) [2022] VCAT 379

ORDER:

VCAT orders that:

Application for orders about an Enduring Power of Attorney

1 The application for an order to revoke the Enduring Power of Attorney dated 16 January 2017 is dismissed.

2 VCAT makes this order because the Tribunal is not satisfied the evidence before it supports making such an order.

3 The Enduring Power of Attorney dated 16 January 2017 continues to apply.

Application for a guardianship order

4 The application is dismissed.

5 VCAT makes this order because the Tribunal is not satisfied the requirements of the Guardianship and Administration Act 2019 for making such an order are met.

Application for an administration order

6 The application is dismissed.

7 VCAT makes this order because the Tribunal is not satisfied the requirements of the Guardianship and Administration Act 2019 for making such an order are met.

Costs

8 The question of an order for costs in these proceedings is reserved for a period of 90 days. If a party wishes to seek an order for costs they must notify the Tribunal within 90 days of the date of this order.

VNH, principal and proposed represented person

EJS, son of VNH and applicant

HNR, daughter of VNH and attorney

XRO, daughter of VNH and attorney

Partner of XRO

Mr F. Butera, solicitor for applicant

Ms C. Symons of Counsel for applicant

Mr M. Elvin, solicitor for attorneys

Dr E. Brophy of Counsel for attorneys

Ms S. Abelardo, Office of the Public Advocate

General Manager of VNH’s current nursing home

Nurse of VNH’s current nursing home

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.

INTRODUCTION

1 In these written reasons for decision, I refer to the person who is the subject of the application as VNH. I have also anonymised the names of the people who gave oral evidence at the hearing. I have done this to protect their identity and the confidentiality of the personal information discussed in these written reasons.

2 For ease of reference, the parties are described as follows:

VNH, principal and proposed represented person

EJS, applicant and son of VNH

HNR, attorney and daughter of VNH

XRO, attorney and daughter of VNH

3 It is relevant to note that in a previous application, the Victorian Civil and Administrative Tribunal (VCAT) made orders dated 27 August 2021 that an enduring power of attorney dated 13 January 2021 appointing the applicant as attorney for VNH for personal and financial was not valid, and that the appointment of the applicant as the medical treatment decision maker for VNH dated 13 January 2021 was not valid.

4 VCAT ordered that the enduring power of attorney dated 16 January 2017 appointing the applicant’s sisters HNR and XRO as joint attorneys for VNH was valid

CURRENT APPLICATION

5 On 7 October 2021, the applicant made an application for an order to revoke the enduring power of attorney dated 16 January 2017 appointing his sisters as attorneys for VNH, due to their breach of fiduciary duties and obligations under the Powers of Attorney Act 2014 (Vic) (POA Act).

6 The applicant claimed the attorneys had exercised their powers contrary to the best interests of their mother, and independent of her wishes and needs. The attorneys had used their powers to force their mother away from the applicant, and had used their powers against the applicant to have him evicted from their mother’s home. The applicant also made an application for a guardship order and administration order for VNH.

7 The applicant filed numerous documents in support of the application, including written statement by the applicant, a copy of a report by the Public Advocate dated 16 July 2021, copies of affidavits by HNR and XRO dated 22 September 2021 in support of their application to the Supreme Court, copies of an email dated 20 March 2021, and a written statement in support of the applicant.

8 The applicant noted the attorneys had made an application to the Supreme Court of Victoria pursuant to Order 53 pf the Supreme Court (General Civil procedure) Rules 2015 (Vic) for recovery of land, to have the applicant removed from their mother’s home.

9 A considerable amount of material was filed by the attorneys in response to the application including, affidavits of attorneys dated 26 November 2021 with annexures, outline of submissions dated 27 January 2022, and Summons material from Victoria Police.

10 The attorneys raised concerns about the level of care VNH had been receiving from the applicant, as well as concerns about the applicant’s conduct in relation to VNH, and his suitability to care for VNH. The attorneys sought that the application be dismissed, and costs be reserved

11 On 29 November 2021, I conducted a hearing by Zoom and made orders adjourning the hearing and referring the applications to the Public Advocate for investigation.

12 On 12 January 2022, Sara Abelardo from the Office of the Public Advocate filed an investigation report.

13 On 28 January 2022, I conducted a further hearing, and after hearing from the Ms Abelardo and the parties’ legal representatives, I made the orders for which the request for written reasons has now been made.

LEGISLATION

POA ACT

14 Section 120 of the POA Act states the nature of VCAT orders:

(1) In an order under section 116 in relation to an enduring power of attorney, VCAT may do any one or more of the following—

(a) revoke all or part of the enduring power of attorney;

(b) revoke the appointment of an attorney under the enduring power of attorney;

(c) vary the effect of the enduring power of attorney;

(d) suspend the enduring power of attorney for a specified period, either generally or as to a specified matter;

(e) authorise or validate a transaction for the purpose of section 65;

(f) make any other order it considers necessary in relation to the enduring power of attorney;

(g) do any other thing that VCAT is required or permitted to do by this Act.

(2) 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.

15 Section 63 of the POA Act provides the duties of an attorney under a power of attorney and the duties considered in this application are:

(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.

16 Section 21 of the POA Act states the principles to be applied by persons acting under this Act or an enduring power of attorney:

(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.

GUARDIANSHIP AND ADMINISTRATION ACT 2019

17 Section 30(2)(b) of the Guardianship and Administration Act 2019 (Vic) (GAA Act) states VCAT can only make a guardianship order or an administration order if is it satisfied the proposed represented person is in need of a guardian or administrator.

HEARINGS

18 During the hearing on 29 November 2021, the applicant’s representative submitted the attorneys had breached their duties under section 21 of the POA Act by moving VNH from her home into respite care. It was submitted the attorneys had failed to take VNH’s wishes into account. VNH wishes were to stay home and live with the applicant, and to have applicant care for her.

19 It was submitted the attorneys had been motivated by the purpose of removing the applicant from the home. It was submitted the enduring power of attorney dated 16 January 2017 should be revoked and an independent administrator and guardian should be appointed.

20 In response, the representative of the attorneys submitted there was no basis for revoking the current enduring power of attorney which VCAT had recently found valid.

21 It was submitted there was no need for the appointment of a guardian and administrator because the attorneys had not breached their duties. They had complied with the principles under section 21, and in accordance with their duties under section 63 of the POA Act, they had taken all reasonable care and skill to promote VNH’s wellbeing. They had removed VNH from her home due to concerns about neglect and isolation, and because her health and wellbeing were compromised, and due to concerns about the applicant’s behaviour. They raised concerns that the applicant had coached his mother in relation to her wishes, and that he had exercised undue influence over his mother.

22 After hearing from the representatives of the applicant and the attorneys, I adjourned the hearing and referred the application to the Public Advocate for investigation.

23 Once the Tribunal received the investigation report of Ms Abelardo from the Office of the Public Advocate, a further hearing was conducted on 28 January 2022.

24 During that hearing I discussed the application with VNH. She told the Tribunal she did not recall the previous hearing or the power of attorney which was the subject of the application. During the hearing I discussed Ms Abelardo’s report and her recommendations. Concerns were raised by the representatives for the applicant about whether a Calabrian dialect interpreter had been used by Ms Abelardo, and whether VNH had understood or been understood by Ms Abelardo during their interview.

25 Ms Abelardo told the Tribunal she had met with VNH and spoken to her face-to-face using VNH’s first language Italian. Ms Abelardo told the Tribunal that she did not experience any concerns communicating with VNH.

26 Ms Abelardo told the Tribunal VNH had told her that she was happy in the nursing home although she wanted to return home, and that VNH was happy to have her daughters HNR and XRO acting as her attorneys.

27 Ms Abelardo told the Tribunal that there was no evidence the attorneys were not complying with the provisions of the POA Act. She also concluded that there was no need for the appointment of an administrator or a guardian as any decisions that needed to be made for VNH could be made by the attorneys.

28 I took the further submissions from the legal representatives into account, including the submissions from Carolyn Symons that the attorneys were not taking VNH’s wishes into account, and that they had breached their duties under the POA Act, and that there had been no mistreatment by the applicant, and that in the circumstances an independent guardian and administrator should be appointed.

29 I also took into account Dr Elizabeth Brophy’s submissions including that the enduing power of attorney dated 16 January 2017 was valid, and that there was evidence of care deficits and neglect and of an abusive environment, and that VNH was vulnerable to influence. Dr Brophy told the Tribunal the attorneys intended to return VNH to her home with appropriate home care services and support once the applicant left the premises, which he had refused to do, therefore requiring the Supreme Court application.

CONCLUSION

30 I took all the evidence before me into account, including all the written statements, affidavits, medical reports, neuropsychological assessments and the legal submissions noted above, as well as Ms Abelardo’s evidence and the investigation report.

31 On the evidence before me, I was satisfied that Ms Abelardo had conducted a face-to-face interview in private with VNH, and that Ms Abelardo spoke Italian to VNH who had understood her and was able to respond to her questions, and that there were no communication problems during that interview.

32 I accepted Ms Abelardo’s evidence that VNH was happy in the nursing home although she wanted to return home, and that VNH was happy to have her daughters acting as her attorneys.

33 On the evidence before me, I was not satisfied the attorneys had breached their duties under the POA Act. I was not satisfied the attorneys were not complying with the provisions of the POA Act.

34 On the evidence before me, I was not satisfied the evidence supported making an order to revoke the enduring power of attorney dated 16 January 2017.

35 Therefore, I dismissed the application for orders about an enduring power of attorney.

36 In relation to the application for a guardianship order and an administration order, I was not satisfied there was a need for a guardian or administrator, given the enduring power of attorney in place. Therefore, I was not satisfied the requirements of the GAA Act for making such orders had been met.

37 I reserved the question of costs.