Margaret Birrell, State Trustees, as Administrator.

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 1986 that identifies or could lead to the identification of a party to the proceeding.**

1. The represented person ("EBG") is a 49 year woman, with a diagnosis of Schizophrenia. Her condition is well managed with medication. She lives independently in the community, and involves herself in local activities.
2. EBG originally gave a general power of attorney to her mother, and her sister and only sibling; KPZ, but both attorneys relinquished their roles in September 2016 due to ill health, in her mother's case, and due to 'remoteness', in her sister's case.
3. State Trustees were appointed as Administrators on 12 October 2016, as a result of the resignations. Both KPZ and EBG agreed to State Trustees becoming the Administrator. The major concern of the family appeared to be the need to curb EBG's excessive spending.
4. EBG's mother died in April 2017, leaving an estate of approximately $635,000. She bequeathed one third of her estate to EBG and two-thirds, to her only other child, daughter, KPZ.
5. In the will, the reasons for the imbalance in bequests was stated as follows: "to equalise what each of my daughters have received from me".
6. The Administrator initiated a testators family maintenance claim ("TFM") in the Supreme Court on 12 April 2018, after receiving counsel's advice as to the appropriateness and likelihood of success of having the will's effect altered so that each daughter could receive one half, equal share.
7. KPZ is the next of kin and nearest relative of the represented person. She made this application pursuant to section 56 of the Guardianship and Administration Act 1986, for an order that the Administrator discontinue the TFM claim.
8. This application is made in conjunction with the re-assessment of the administration. hope

1. The represented person has been financially supported by her mother all her adult life.
2. The two sisters are personally very close. They phone each other frequently, they holiday together and EBG considers her sister her best friend. KPZ continues to help EBG financially.
3. Prior to initiating the TFM claim, the Administrator sought out EBG's opinion about the making of the claim. In response, she made it clear that she did not agree to the course of action, and she has maintained her opposition to the Administrator's action since its inception. In her evidence to the Tribunal she stated: "They (the Administrator) do not listen to me."
4. At the hearing EBG gave her evidence in a measured, considered and persuasive manner. She repeatedly stated she did not want the court litigation made in her name, to continue. She believed it (the litigation) would negatively affect her relationship with her sister. Her sister, KPZ, is her only adult relative and is very important to her. Furthermore, she wanted her mother's wishes, as stated in the will, to be respected and given effect. EGB was a compelling witness.
5. KPZ is not making this application, through any self-interest. The application is being made after consultation and agreement with the represented person.

Sec 49 Guardianship and Administration Act

S.49 Exercise of Power by Administrator.

(1) An Administrator must act in the best interests of the represented person.

(2) Without limiting sub section (1) an Administrator acts in the best interests of the represented person if the Administrator acts as far as possible-

(a) in such a way as to encourage and assist the represented person to become capable of administering the estate; and

(b) in consultation with the represented person, taking into account as far as possible the wishes of the represented person.

1. Section 49 provides the manner in which an Administrator must act. The primary requirement is that the Administrator act in the represented person's best interests. Both financial and personal best interests are intended by the legislation. Whilst it may be in the represented person's financial best interests to continue with the TFM claim, the Tribunal has to balance the competing claim of personal best interests.
2. This is an unusual application. Commonly, an Administrator would seek advice of the Tribunal in a case where there is opposition to litigation proposed on behalf of the represented person, which directly affects the represented person's nearest relation and sister. There is no evidence that such advice was sought in this case.
3. Furthermore, the applicant and the represented person are not opposed to the Administrator's general conduct of the administration. They agreed to State Trustees being appointed initially and there was no opposition to the re-appointment on 17 October 2018. Nevertheless, there is very strong opposition to the TFM claim for personal reasons.
4. Sec 49(b) defines as one of the criteria for acting in the best interests of the represented person as: if the Administrator acts in consultation with the represented person, taking into account as far as possible the wishes of the represented person. In this case the represented person was asked once, and her wishes were not taken into account or were over ridden. The general meaning of the word 'consultation' suggests an ongoing process. There was never an ongoing consultation here. EBG has maintained her opposition to the Administrator's course of action but her wishes have been ignored.
5. EBG has impressed the Tribunal with her views. She is intelligent, and although she acknowledges she has difficulty managing her money, that is quite different issue to making decisions which affect her personal wellbeing. She does not have difficulty in identifying what matters to her personally. Her sister is her only next of kin. She has no other adult relative in the world. She needs and wants her sister's support. The Tribunal accepts this litigation is having a negative effect on this relationship. The represented person has conveyed to me her real distress.
6. In these very real circumstances I find the wishes of the represented person are more compelling than the financial best interests. Accordingly, I make the following order: