1. A person (including VCAT) exercising powers functions and duties under the Act must have regard to the principles set out in section 8 of the Act. In summary, they are:
   1. 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;
   2. the will and preferences of a person with a disability should direct decisions made for the person, as far as practicable; and
   3. powers, functions and duties must be used in the way which is the least restrictive of the ability of the person with a disability to decide and act as is possible in the circumstances
2. Section 9 of the Act sets out further principles which apply to a person making a decision 'for' a represented person. These apply to a guardian, administrator, supportive guardian or supportive administrator who is making a decision for a represented person. They would also apply to VCAT when it is advising an appointed decision maker about their powers and duties.

1. When appointing a guardian, VCAT must apply the principles in section 8, including that ALG's will and preferences should direct the decision 'as far as practicable'.
2. ALG's will and preferences are relevant also when VCAT decides whether a person needs a guardian (section 31) and whether a proposed guardian is a suitable person to be appointed (section 32(3)(a)).
3. ALG attended the hearing and I spoke with her about her will and preferences_._ I also spoke with the other persons who attended the hearing about ALG's will and preferences. This was a topic on which everyone agreed.
4. Based on this evidence, it was very clear the ALG does not want the Public Advocate to remain as her guardian. She is a strongly independent woman who has a strong desire to live independently. She does not wish to remain living in an aged care facility and wishes to return to independent living in the community, either on her own or with a friend.

1. Section 30(2)(a) of the Act says VCAT may only appoint a guardian for a person if satisfied that because of the person's disability, the person does not have decision-making capacity in relation to the personal matters which are the subject of the application.

1. For the reassessment hearing I had a number of letters, medical reports and assessments before me including the following:
   1. Neuropsychology report from Dr Natalie Grima, dated 18 July 2018.
   2. Neuropsychology report from Dr Christina Furtado, dated 23 January 2020.
   3. Clinical psychology reports from Dr Rochelle Cairns, dated 7 June 2018 and 24 January 2020.
   4. Letters from Dr Furtado and Dr Cairns, dated 20 February 2020.
   5. Medical report from Dr Gayle Troedson, general practitioner, dated 17 May 2022.
   6. Letter from Dr Troedson dated 9 October 2018.
   7. Medical report from Dr Rahul Muthalaly, rehabilitation registrar, dated 24 January 2020.
   8. Letter from Dr Claire Taylor, rehabilitation registrar, dated 20 February 2020.
   9. Social worker report prepared by Ms Kristy Burgess, undated but prepared in anticipation of the VCAT hearing scheduled for 25 July 2018.
   10. Social worker report prepared by Ms Stephanie Arrottwatt, undated but prepared in anticipation of the VCAT hearing scheduled for 5 February 2020.

1. According to the neuropsychology report from Dr Grima, dated 18 July 2018, ALG had been admitted to hospital on 5 May 2018 on the background of eviction from her Office of Housing rental property due to squalid conditions brought about by excessive hoarding. She was aged 74 at this time. She had been reviewed on multiple occasions whilst in hospital by a consultant liaison psychiatrist, who diagnosed ALG with hoarding disorder, concomitant with obsessive-compulsive personality features and anxiety. She also underwent neuropsychological evaluation which revealed a range of moderate to severe deficits in executive function. A formal neuropsychology report was then sought to assess ALG's decision-making capacity for lifestyle and financial matters.
2. Dr Grima found that ALG demonstrated limited insight into the gravity of her situation. She had a tendency to perseverate and act impulsively, and she lacked executive functioning skills around planning and problem-solving. She was disorganised in her thinking and was suspicious of others. She also had difficulties in learning from past experiences and in working collaboratively with others to support suitable long-term planning. Dr Grima concluded that ALG lacked decision-making capacity around lifestyle and financial matters and recommended the appointment of a guardian and administrator.
3. A further neuropsychology report was prepared on 23 January 2020, this time by a different neuropsychologist, Dr Furtado. This report referenced the earlier report prepared by Dr Grima. Dr Furtado noted that ALG engaged poorly in her own assessment. She found that there had been no overt decline in executive functioning, although it remained impaired with 'persisting marked difficulties especially in planning, organisation, visual reasoning, perseveration, impulsivity, and sustained and complex attention'. She noted that ALG remained highly vulnerable to future homelessness and financial exploitation due to her range and severity of deficits in executive function. Dr Furtado stated that she fully supported the appointment of a guardian and administrator for ALG, concluding:

Based on her psychiatric disability, cognitive impairments and long-standing personality traits, [ALG] does not demonstrate the ability to make informed, reasoned and considered decisions in relation to complex financial and accommodation/lifestyle matters. She is highly disorganised, inflexible and has difficulty reasoning and problem-solving through novel or challenging situations. The treating team have attempted to explore several least restrictive options with [ALG] but she has not been open or agreeable to any alternative arrangements, preferring to pursue her own legal resolutions.

1. Two clinical psychology reports were prepared by Dr Cairns, dated 7 June 2018 and 24 January 2020. In her 2018 report, Dr Cairns discussed in detail ALG's issues with hoarding that had led to her situation of homelessness. She noted that these hoarding tendencies persisted even within the hospital environment and had a poor prognosis. In her 2020 report, Dr Cairns noted that ALG had shown no improvement since her earlier assessment in 2018. She continued to display a range of unusual beliefs and information processing deficits, as well as disorganised thinking. Dr Cairns felt that ALG lacked insight into her deficits and her pattern of chaotic behaviour had continued. Dr Cairns concluded that without constant environmental support, ALG's chaotic lifestyle, poor management of finances, acquisition of objects and unsafe food handling practices would resume or increase, putting her again in a position of being potentially taken advantage of and having worsening quality of life.

Subsequent letters from Dr Furtado, Dr Cairns and Dr Taylor, dated 20 February 2020

1. Subsequent to their reports described above, Dr Furtado and Dr Cairns provided letters dated 20 February 2020, in which they each confirmed their support for the hospital treating team's request to withdraw the application for the appointment of a guardian and administrator. However, I note that these letters did not express any contrary view from the conclusions expressed in their earlier report as to ALG's lack of decision-making capacity. Rather, they each supported the withdrawal of the application on the basis that ALG had been highly distressed by being in hospital and her ongoing admission was proving countertherapeutic. Two of her adult children had agreed to set up direct debit arrangements to assist ALG with her financial difficulties and ALG had obtained assistance from an organisation, Well Springs, to assist her in the community. On this basis, Dr Furtado and Dr Cairns both felt that ALG had adequate informal support in the community such that the appointment of a guardian and administrator was not necessary at that time.
2. A similar letter was also provided by Dr Taylor, one of ALG's treating rehabilitation registrars, which supported the withdrawal of the application on the basis that ALG was not presenting with any acute psychiatric symptoms or risks.

1. According to her report dated 7 May 2022, Dr Troedson has been ALG's treating general practitioner for over 20 years and she had last seen ALG three months prior. She reported that ALG had some decision-making capacity in relation to medical treatment, but no capacity in relation to general living or financial and property affairs. On the question of whether ALG could make decisions about her general living if she had support and could access that support, Dr Troedson ticked 'no', although noted in the comments 'maybe but probably not in view of her previous living circumstances'.
2. Dr Troedson further noted in her report that ALG had been evicted from her Office of Housing home because of squalid conditions and that she has a hoarding disorder with very poor insight.
3. I note that Dr Troedson had previously provided a brief letter dated 9 October 2018, in which she conveyed that 'ALG states she has full capacity to look after her own affairs and states she does not need help from public trustees, public advocates, or administrators regards guardianship. ALG states her mind was not settled at the time of previous assessment when an inpatient in hospital'. I have treated this letter as merely conveying ALG's own opinion of her capacity, rather than the opinion of Dr Troedson. I note that in no place does Dr Troedson endorse ALG's opinion or express any view herself as to ALG's capacity and the content of the letter sits in direct contrast to the view expressed (albeit at a much later time) in Dr Troedson's own report.
4. According to the medical report prepared by Dr Muthalaly, rehabilitation registrar, dated 24 January 2020, ALG had capacity to make medical treatment decisions, but lacked decision-making capacity in relation to general living circumstances and financial and legal affairs. In expressing this opinion, Dr Muthalaly relied on ALG's past psychiatric, neuropsychological, psychological and geriatric assessments and referred to the range of past moderate to severe deficits revealed through these assessments.
5. I also had before me social worker reports prepared in 2018 and 2020. These reports provide background in relation to ALG's psychosocial history and the challenges faced by her hospital and community treating teams, family and others in seeking to source appropriate accommodation for ALG. On the issue of ALG's disability and decision-making capacity, the reports refer the reader to the medical, neuropsychological and psychological reports discussed above.

1. During the hearing I discussed with ALG the concerns expressed by various medical professionals, both current and past, as to her decision-making capacity around personal and lifestyle matters, particularly in relation to finding suitable accommodation. ALG was entirely dismissive of these concerns. She claimed that she did not have any medical conditions that affected her decision-making capacity and that she did have capacity to make decisions for herself in relation to her accommodation.

1. I am mindful of comments in the 2020 social worker report to the effect that one of ALG's adult daughters, ZKM, does not agree that ALG has any mental illness. However, ZKM did not attend the hearing before me and has not provided any evidence in writing to this effect. These comments date back to 2020 and ALG's condition and general living circumstances appear to have deteriorated since then. I also note that there is nothing before me to indicate that ZKM holds any relevant qualifications or experience to assess decision-making capacity, and her opinion as to ALG's lack of disability is not supported by ALG's other two adult children and is contradicted by the reports described above. Given these matters, I give this reference to ZKM's opinion little weight.

1. ALG clearly believes that she has decision-making capacity in relation to decisions concerning accommodation. However, for the reasons discussed below, ALG's position was not supported by the medical evidence before me.
2. As outlined above, ALG has been assessed by a variety of medical professionals over approximately the past five years as to her decision-making capacity around personal and lifestyle matters. The unanimous view of all those who have reviewed ALG has been to the effect that she lacks decision-making capacity around these matters, particularly in relation to accommodation.
3. In reviewing these reports, I am mindful of the guidance provided by Bell J when assessing decision-making capacity, albeit in a different statutory context, in PBU & NJE v Mental Health Tribunal [2018] VSC 564. In the context of assessing capacity to consent to electro-convulsive treatment, His Honour's guidance was to the effect that care should be taken not to set the bar for decision-making capacity too high for persons with disability, lest one fall into a discriminatory line of reasoning which treats capacity assessments differently and more stringently for persons with disability.
4. Nevertheless, even with this guidance in mind, I am satisfied from the clear and compelling medical evidence before me that ALG lacks the capacity to make decisions about where she is able to live.

IS A SUPPORTIVE GUARDIANSHIP ORDER APPROPRIATE?

1. Appointing a supportive guardian would be less restrictive than appointing a guardian. A less restrictive order would be consistent with the principles in section 8 of the Act.
2. VCAT has power to appoint a supportive guardian whenever an application is made for appointment of a guardian, as provided by section 87 of the Act.
3. However, to appoint a supportive guardian for a person, the person must consent and must have decision-making capacity when practicable and appropriate support is provided, as set out in section 87(2) of the Act.
4. In the present case, this less restrictive alternative was not available because the medical evidence outlined above made clear that ALG lacks decision-making capacity because of her disability, which makes her unable to comprehend or problem-solve the issues surrounding finding appropriate accommodation. The evidence does not establish that ALG would have decision-making capacity even when supported. To the contrary, the medical evidence, as well as the other evidence discussed at the hearing and throughout this statement of reasons, demonstrated that present and previous treating teams, as well as family, have attempted to support ALG to find suitable accommodation through less restrictive means but this has repeatedly proven unsuccessful. In any event, on the evidence before me there was no potential supportive guardian available.
5. Accordingly, that less restrictive alternative is not available in this case.

1. Section 30(2)(b) of the Act says VCAT may only appoint a guardian for a person if satisfied that the person needs a guardian.
2. Section 31 of the Act sets out a number of matters VCAT must consider in determining whether a person needs a guardian. VCAT must consider the person's will and preferences (as far as they can be ascertained) and whether decisions about the relevant personal matters could be more suitably made informally or could reasonably be made by mediation, negotiation or some similar method. VCAT must also consider the wishes of any primary carer, relative or other person with a direct interest in the application and must also consider the desirability of preserving existing relationships important to the person with a disability.

1. ALG told me that she wanted her guardianship order revoked and to cease to have any further involvement with the Public Advocate. She was completely dismissive of the various concerns raised as to her decision-making capacity and her welfare generally. She did not agree that she required the level or type of support that could be provided through an aged care facility. She did not wish to live in supported accommodation generally and preferred to live independently. She provided the name of a friend whom she said had offered to help her, including by having ALG live with her. However, I note that this friend did not attend the hearing to give evidence; nor did this friend provide anything in writing. Further, when I asked ALG for further information about this friend or how this proposed living arrangement might be adequate to meet her various mental and physical health needs, ALG's evidence was very vague and unconvincing.
2. By contrast to the evidence of ALG, the other evidence given at the hearing was clearly in support of the ongoing appointment of the Public Advocate as ALG's guardian, as summarised below.

1. The Public Advocate has provided a number of reports over the history of this matter.
2. On 18 February 2020, the Public Advocate completed its first investigation report, recommending that VCAT grant leave to the applicant to withdraw the application for guardianship and administration orders. The report noted that ALG's treating team had held a meeting with the family, the outcome of which was that ALG's family had provided the treating team with assurances that they could support ALG in finding suitable discharge accommodation and to set up direct debit arrangements to ensure that her financial affairs would be satisfactorily managed. On this basis, the Public Advocate supported the request of Monash Health to seek leave to withdraw their application on the basis that guardianship and administration orders were not required at that time.
3. On 28 June 2022, the Public Advocate completed its second investigation report. On the question of whether there was a need for a guardian, the investigator noted that he had not been able to make contact with ALG. However, all parties consulted agreed that ALG would be unlikely to agree to any decisions made by an independent guardian. He also noted that two of ALG's adult children had indicated that they would be available to support ALG to the extent that she was willing to accept their support. On this basis, the investigator relevantly recommended that the application for a guardianship order be dismissed.
4. Notwithstanding this recommendation, on 21 July 2022, VCAT appointed the Public Advocate as ALG's guardian with power to make decisions on where ALG lives.
5. On 7 September 2022, the Public Advocate made a formal request to VCAT to make an order under section 45 of the Act to transport ALG to an aged care facility. In this request, the Public Advocate noted that ALG was living in a house that was set to be demolished imminently. ALG and the two other occupants had been given notice to move out by 9 September 2022. The Public Advocate sought to move ALG into respite accommodation which had been located after exhaustive efforts. VCAT subsequently made this requested section 45 order on 8 September 2022.
6. On 8 December 2022, the Public Advocate provided VCAT with a further report in which the delegated guardian, Ms Carroll, outlined a range of challenges she had faced in sourcing appropriate accommodation for ALG. She noted that ALG continued to lack an ability to understand or acknowledge the difficulties in relation to finding accommodation suitable to her needs. She also outlined a summary of her actions to date as ALG's guardian. This had included making a decision to transport ALG from her previous housing that was facing imminent demolition to respite accommodation at Mercy Care Lynbrook. She noted that ALG had refused to leave her house and she required the use of VCAT's section 45 order to enable her transportation by ambulance. She was placed in the Memory Support Unit at Mercy Care, a locked ward, due to ALG's expressed intent to leave the ward and due to the higher ratio of staffing with appropriate training. Ms Carroll outlined that she had obtained three extensions to this respite accommodation and had since completed the relevant paperwork to seek permanent accommodation for ALG. Ms Carroll recommended reappointment of the Public Advocate as RP's guardian in relation to accommodation decisions on the basis that there remained outstanding decisions in relation to ALG's accommodation that ALG lacked the capacity to make herself without the appointment of a guardian. She further noted that family members had previously been appointed as guardian for ALG, but this had proven unworkable.
7. On 19 January 2023, Ms Carroll provided an addendum to her report. She noted that there had been a previous plan for ALG to move to a psychogeriatric facility, Mooraleigh Hostel. However, her application was refused on the basis that this facility could not provide the level of care and support that ALG required due to her frailty and impaired mobility. Ms Carroll outlined that she was exploring alternate accommodation options for ALG and, in the meantime, had obtained approval from Mercy Care Lynbrook for ALG to move from the Memory Support Unit to their generalist unit, which would provide ALG with a greater level of freedom. Ms Carroll noted that ALG continued to disagree with living in an aged care facility and expressed the wish to live with friends or rent a property, neither of which was a realistic option given ALG's significant health care needs.
8. At the hearing, Ms Carroll spoke to her reports. She explained that the Public Advocate's appointment had originally come about following exhaustive efforts from ALG's council case managers to find suitable accommodation. ALG was unwilling to engage in this process or agree to any suitable accommodation options, resulting in a situation where she was living in manifestly unsuitable housing with two young men she had recently met with drug and alcohol addiction issues and in a property that was facing imminent demolition. She explained that ALG clearly needed to find alternate accommodation but would not engage or accept any options. As such, the Public Advocate was appointed as her guardian and a decision was made to transport her to Mercy Care Lynbrook for respite care. Ms Carroll noted that she had attempted to engage ALG around her will and preference in relation to accommodation, but ALG had been completely uncompromising and unrealistic. As such, she had been required to make decisions contrary to ALG's will and preference to prevent her from suffering serious harm. She recommended that the Public Advocate be reappointed as ALG's guardian for a further 12 months in relation to decisions around ALG's accommodation.

1. Ms McClounan told me that she had been working with ALG for a long time, together with other colleagues, in trying to find her suitable accommodation. She noted that ALG had been unwilling to consider any options, which she tended to dismiss out of hand without being open to any discussion or consideration. She had supported the decision of the Public Advocate to move ALG to Mercy Care Lynbrook as an option of last resort, in light of the urgency of the situation given the imminent demolition of ALG's house, ALG's unwillingness to consider any alternate options and due to her declining physical health which necessitated accommodation in an aged care facility with a high level of specialised nursing care. She also told me that she supported the reappointment of the Public Advocate as ALG's guardian to make decisions about where she lives.
2. Ms Potheegadoo was ALG's mental health case manager through Monash Health. She told me that she strongly supported the reappointment of the Public Advocate as ALG's guardian, noting that ALG had experienced a significant decline in her physical health in recent months which made it necessary for her to be living in supported accommodation with nursing care. She also told me that she had spoken with ALG's treating consultant psychiatrist, who also agreed with this recommendation and believed that ALG's physical and mental health needs required her placement in a specialised psychogeriatric facility.
3. ALG's son, ZYN, told me that he also supported the reappointment of the Public Advocate as ALG's guardian. He noted that he and his sister had a long history of attempting to support ALG in finding appropriate accommodation without success. He noted that they had previously been appointed as ALG's guardian, but this proved futile as ALG disregarded their decisions as her guardian.

1. I have considered ALG's will and preferences - that is, that she does not want a guardian as summarised above. I was unable to give effect to those wishes because ALG's view of her own capabilities was quite different from the other evidence before me.
2. I have also considered possible informal means of making decisions about personal matters for her, although I consider that less formal decision-making is not practicable. I note, for example, that this was previously trialled in 2020, when the second application for guardianship and administration orders was withdrawn on the basis that two of ALG's adult children organised direct debit arrangements and ALG organised other community supports to enable her discharge from hospital. However, these informal supports are no longer available for ALG. Her adult son who attended the hearing, ZYN, told the Tribunal that he supports the reappointment of the Public Advocate. Whilst ALG's adult daughters did not attend the hearing, ZYN told me that he and his sister, VDH, were both in agreement on this issue. I accepted this evidence.
3. ALG's other community supports who gave evidence at the hearing were also in favour of appointing a guardian. It was emphasised to me that ALG is now aged 79, with a range of deteriorating physical health needs, deficits in executive functioning and mental health issues. She is extremely vulnerable and her significant care needs will not be adequately met if left to ALG to determine for herself where she lives.
4. Appointing a guardian will not interfere with the relationships that are important to ALG because her friends and family remain available to visit and support ALG to the extent that she is agreeable. Indeed, reappointing the Public Advocate would seem to support ALG's ongoing relationship with her adult children by relieving a degree of carer burden that has been damaging to their relationship in the past.
5. Taking all this into account, I am satisfied that ALG needs a guardian to make decisions about where ALG lives.

1. Section 30(2)(c) says VCAT may only appoint a guardian for a person if satisfied that the guardianship order will promote the person's personal and social wellbeing. I am satisfied in this case that the order will do so because a guardian will be able to choose accommodation for ALG where she will be safe and have her various mental and physical health care needs met and supported.

1. In this case, no relatives or friends of ALG were willing to be appointed as guardian.
2. I was satisfied (as required by section 33 of the Act) that no person other than the Public Advocate fulfils the requirements of section 32 for appointment as guardian for ALG.

1. The order says that the guardian can make decisions about where ALG lives.
2. The Act gives guidance for the guardian about how to exercise their decision-making power. The principles in section 8 and section 9 of the Act apply to those decisions.
3. Section 9 of the Act sets out the principles applying when a decision is made for a represented person. It says the administrator 'should give all practicable and appropriate effect to the represented person's will and preferences'. It also says that ALG's will and preferences 'should only be overridden if it is necessary to do so to prevent serious harm' to her.
4. Section 41 sets out further requirements of the guardian. Some of the requirements oblige the guardian to encourage and assist ALG to develop decision-making capacity about personal affairs, and act in such a way as to protect her from neglect, abuse or exploitation and must avoid any conflict of interest.

1. This order will be reassessed by no later than 31 March 2024. ALG or anyone else can apply for the reassessment to be sooner if that is necessary.