Application for Guardianship Disputed by Parties

LWW (Guardianship) [2022] VCAT 221 (2 March 2022)

WQE filed an application about an enduring power of attorney.  Orders were made for Public Advocate (OPA) to be appointed as guardian for LWW with power to make decisions in relation to access to persons and that BXT be appointed administrator.  The Court, in making its orders, assessed whether an administrator and guardian is needed.

Facts:

WQE applied to the Tribunal for orders about an enduring power of attorney (EPA) made by his mother LWW on 21 December 2017.  Under the EPA, LWW appointed her daughter BXT to be her attorney for personal and financial matters.  WQE said that BXT was not acting in their mother’s best interests and she was socially isolating their mother.  On 21 December 2017, at the same time as LWW made the EPA which is the subject of these proceedings she also made an Appointment of Supportive Attorney in relation to personal and financial matters and an EPA (medical treatment) appointing BXT as attorney.

The application was first heard by VCAT on 6 March 2020.  It was adjourned for the Public Advocate (OPA) to complete an investigation and report to the Tribunal.  BXT was directed to submit to VCAT a statement of accounts in respect of her operation as attorney.  OPA provided a report on 26 October 2021.  BXT also provided accounts as directed.

The OPA investigator Aimee Gordon in her report to VCAT recommended that the Tribunal consider appointing BXT as administrator and either suspend the personal powers under the EPA or appoint an independent guardian with authority to make decisions about the persons with whom LWW associates. 

During the investigation Ms Gordon spoke with LWW, WQE, BXT and the care manager and facility manager at the aged care facility where LWW lives.  Ms Gordon also had access to written statements filed with the Tribunal from BXT, from two nurses at the aged care facility where LWW lived previously, a friend of LWW and her late husband, her granddaughter VHS, and CGL and CGL’s wife and daughter.

Ms Gordon noted in her report that WQE, VHS and those who had provided written statements were concerned that in 2019, BXT was suddenly removed LWW from the previous facility where she lived to the current facility without communication or notification to them, that BXT had prevented access to LWW, and that BXT had isolated LWW and instructed facility staff not to transfer any of their calls to LWW.  Ms Gordon said that BXT told her that WQE and others were motivated by financial interest in contacting LWW.  Orders were made for OPA to be appointed guardian for LWW with power to make decisions in relation to access to persons and that BXT be appointed administrator with a direction that BXT provide copies of the Accounts by Administrator and supporting documents to WQE.

Issue:

Whether or not an administrator and guardian is needed. 

Applicable law:

Powers of Attorney Act 2014 s 83 - where the effect of these orders is that the EPA remains in place but by virtue of this section, cannot be exercised in relation to financial matters and access to persons by LWW unless authorised by VCAT to do so.

Guardianship and Administration Act 2019 s 8 - provides that a person with a disability should be given practicable and appropriate support to make and participate in decisions, express their will and preferences and develop their decision-making capacity. 

Guardianship and Administration Act 2019 s 30 - says VCAT may only appoint a guardian or administrator for a person if satisfied that the order will promote the person’s personal and social wellbeing.

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.

Charter of Human Rights and Responsibilities Act 2006 s 13 - provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with. 

Analysis:

As stated in Ms Gordan’s report dated 26 October 2021, the appointment of [BXT] as administrator will provide greater accountability and more assurance that [LWW’s] finances are being appropriately managed.  It is hoped that this will remove [LWW’s] finances as a source of disagreement and tension between [WQE] and [BXT], which would promote [LWW’s] personal and social well being.  Very serious allegations have been raised that LWW’s relationships with her family and her access to correspondence have been arbitrarily interfered with.  In light of these allegations and the primary purpose of the GA Act, safeguarding her human rights by the appointment of a guardian is an important aspect of promoting her personal and social wellbeing.

The appointment of [BXT] as administrator will provide greater accountability and more assurance that [LWW’s] finances are being appropriately managed.  It is hoped that this will remove [LWW’s] finances as a source of disagreement and tension between [WQE] and [BXT], which would promote [LWW’s] personal and social wellbeing.  There is a need for an administrator to allay family members’ concerns about the management of the funds and to provide greater accountability.  The appointment of BXT as administrator accords with LWW’s will and preferences that BXT make decisions for her.

Conclusion:

The enduring power of attorney made by the represented person on 21 December 2017 appointing [BXT] as attorney for personal and financial matters is suspended so far as it relates to financial matters.  The enduring power of attorney (medical treatment) made by the represented person on 21 December 2017 appointing [BXT] as agent remains in place.  [BXT] is directed to immediately notify [WQE] in the event there is any significant change in the represented person's medical condition or if she is hospitalised.  The Public Advocate, Office of The Public Advocate 1/204 Lygon St, CARLTON VIC 3053 is appointed guardian for [LWW]. 

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