In examining the transactions on the principal's bank account I was in the majority of cases able to substantiate payments to supporting documentation although this documentation in some instances did not specify that it related to the principal. This is not unusual given this documentation was often cash register receipts etc... I do not consider the number of cases where supporting documentation was not available as excessive[2].

1. After EMT's death, the applicant pursued this compensation claim against the former attorney, her sister OQV. FVW seeks an order that OQV seeking compensate the principal's estate in respect of the following amounts which were identified in the examiner's report and which the applicant says contravened the Powers of Attorney Act 2014 (POA Act):

1. gifts of $65,255 to the principal's sister ZNZ; 2. gifts totalling $18,210 to other persons;

1. any further sums paid by the principal's estate for property expenses, utilities rates taxes for any of the properties solely owned by the attorney and her sister IUC that have been paid and not accounted for since the auditor's report in 2018[3]; 2. legal fees incurred by the attorney in the unsuccessful appeal on behalf of the deceased principal, such sum to be confirmed by the attorney; and 3. interest on all those sums.
2. I heard the claim on 3 July and 21 September 2020 and reserved my decision.

1. The claim is brought under section 77 of the POA Act which relevantly provides:

(1) The Supreme Court or VCAT may order an attorney under an enduring power of attorney to compensate the principal for a loss caused by the attorney contravening any provision of this Act relating to enduring powers of attorney when acting as attorney under the power of attorney.

1. The POA Act began operation on 1 September 2015. OQV was appointed attorney for the principal long before that, under an enduring power of attorney given her by the principal in 1997.
2. The claims made against the former attorney are all about events which occurred after 1 September 2015, which means VCAT has jurisdiction to deal with them under section 77.
3. There are two essential elements to a claim for compensation under this section - first the applicant must show that the attorney contravened a provision of the POA Act and secondly, they must show that by the contravention the attorney caused a loss to the principal's estate.
4. The transitional provisions in section 142 of the POA Act ensure that the 'old' power of attorney made in 1997 continues to be valid and the laws in force about powers of attorney before 1 September 2015 (under the Instruments Act 1958 (Instruments Act) which is now repealed) continue to have effect in relation to the old power of attorney. There is an exception to that rule - some listed sections of the POA Act apply to the old power of attorney as if it had been made under the new POA Act.

1. Section 67 of the POA Act authorises an attorney under an enduring power of attorney to make gifts from the principal's estate in limited circumstances. It relevantly says:

(1) Subject to any condition or restriction stated in an enduring power of attorney, an attorney for financial matters under the power of attorney may make a gift of the principal's property only if -

(a) the gift is reasonable having regard to all the circumstances and, in particular, the principal's financial circumstances; and

(i) to a relative or a close friend of the principal and is of a seasonal nature or for a special event; or

An example of a special event is a birth or a marriage.

(ii) a type of donation that the principal made when the principal had decision making capacity for the matter or that the principal might reasonably be expected to make.

(2) A gift may be made under subsection (1) even though the gift is made to -

(b) a relative or close friend of the attorney; or

(c) an organisation with whom the attorney has a connection.

(3) An attorney must keep a written record of any gift by the attorney -

(ii) a relative or close friend of the attorney; or

(iii) an organisation with which the attorney has a connection; and

(4) A record kept under subsection (3) must set out the amount of the gift and the person or organisation to whom it has been made.

1. Section 67 is not one of the provisions named by section 142(2) of the POA Act as applying to an old power of attorney "as if it had been made under" the new POA Act.
2. As I have said in other cases, the best interpretation of section 142(2) is that provisions not listed in that sub-section apply to an old power of attorney to the extent they are consistent with the law which applied under the Instruments Act immediately before the new POA Act came into operation[4].
3. It is not easy to discern what was the law about an attorney's power to make gifts at that time. The Instruments Act did not mention gifts at all.
4. The Australian commentator GE Dal Pont[5] suggests that there is no tolerance in the common law for an attorney to make gifts from the principal's estate. The courts, he observes,[6] have not read into enduring powers of attorney a power for the attorney to make gifts, probably because of the potential for abuse. The case law to which this commentary refers is mostly from the United States of America and arises in relation to large gifts of property given by an attorney in order to avoid death duties. The sort of issues arising in the present case are not addressed in his discussion of the law.

• 19 In the Parliamentary Report which forms the legislative background to the POA Act, the Law Reform Committee of the Victorian Parliament, observing that the Instruments Act was silent on the issue of gifts, observed: "The current arrangements for providing gifts and other benefits are susceptible to abuse."[7] The Committee made no reference to any controls imposed at common law.

1. It is sufficient to say that the attorney had no authority to make large gifts of the principal's property.
2. If section 67 of the POA Act applied, some of the gifts to family members, if shown to be consistent with the principal's wishes and previous behaviour, would arguably be allowed by that section. If section 65 of that Act applied, the attorney could possibly have sought and obtained permission to make the gifts from the Tribunal. Under the Instruments Act, the attorney could have applied to the Tribunal under section 125V (which allowed an attorney to seek advice from the Tribunal) for an order or direction allowing her to make the gifts.
3. I have not been able to identify decided cases before 1 September 2015 which indicate it would have been a breach of duty to make reasonable gifts consistent with the principal's behavior before losing capacity. In broad terms, I consider section 67 restates the attorney's duties as they were at common law.
4. Taking all that into account, I take the following approach. If the gifts were of a kind which would be permitted by section 67, then they cannot be said to have been a breach of duty causing a loss to the estate. Similarly if the gifts were of a kind which the Tribunal would have permitted the attorney to give had permission been sought under section 65 of the POA Act or section 125V of the Instruments Act, then they cannot be said to have contravened the POA Act and caused a loss to the estate for the purposes of section 77.

1. Mr Muldoon's report found that during the period under review (that is from the date when the attorney began exercising the power of attorney, until 31 March 2018) $37,000 had been paid to ZNZ, sister of the principal. In addition, there was a payment of $15,000 on 3 July 2017 which he said may have been to ZNZ. At the hearing, the attorney agreed that payment was to ZNZ. In her statement, dated 24 February 2020, the attorney said she had paid a total of $65,225 to ZNZ while she was the attorney. The applicant relied on this to seek repayment to the principal's estate of the entire $65,255.
2. Mr Muldoon attached to his report a statement from the attorney about the gifts she gave to ZNZ. It said:

Both my parents have been kind and extremely generous people throughout their lives. Many people including family members have benefitted from these acts of generosity that have improved the quality of their lives. One reason my mother appointed me as her POA was that she wanted these gifts of money to continue to those who were receiving it. My aunt - [ZNZ] is one such person who has been receiving money from my parents for many years.

1. The attorney provided to the examiner two cheque butts which he said were as follows: one showing a gift to ZNZ of $10,000 in April 2015 (cheque number 1281) and one showing a payment to an old friend of the family for $20,530 in May 2015. I note that cheque number 1281, the butt for which was produced at the hearing, bore the date 21 April 2014.
2. In her affidavit dated 24 February 2020, the attorney said (at para 13) "there was an established pattern that my mother gave her sister [ZNZ] $10,000 every six months (see attached cheque butts)". Only one cheque butt about payments to ZNZ was attached - the same one as had been shown to Mr Muldoon, cheque number 1281, but in the space for a date it said only "21".
3. For the hearing, the attorney produced in all five cheque butts showing payments to ZNZ before the principal lost capacity to manage her own affairs. These had not been submitted within the time limit set by directions in preparation for the hearing, however I determined to consider them and allowed the applicant time to prepare questions about them.
4. The attorney was cross-examined about each cheque butt and various discrepancies identified by the applicant's lawyers. Her evidence was as follows.
5. For cheque number 1093, dated 4 June 2012, she agreed that it was she who had written the date in pencil under the original date written by her mother because when she was sorting out the cheques she found the date on this one was smudged so that the year was unclear. It clearly said "[ZNZ]" and "$10,000".
6. For cheque number 1126, which bore the date 22 November 2012, when asked why the handwriting on it was different to the earlier one and why the name of ZNZ was spelt differently, she said that her mother had a bookkeeper who did some of her work and might have completed this cheque butt. Later, when she located her copy of that cheque butt, she corrected her evidence to say that this was in her mother's handwriting and the name was spelt properly, just hard to read.
7. For cheque number 1195, dated 11 November 2014, she explained that it was for $12,000 instead of $10,000 because it was her aunt's birthday and near Christmas and her mother's gave presents on those occasions. She said the writing on this cheque butt was also her mother's.
8. For cheque number 1281, dated 21 April 2014, which said "June" and "half year" beside the name of ZNZ and was also for $10,000, she said the writing was also her mother's. She could not explain why it said "half year" except that her mother would prepare things like this in advance. Asked why the number was out of sequence with other dates, such as cheque number 1205 dated 10 July 2015 (to ZNZ for $10,000), she said her mother had several cheque books and used different ones at different times.
9. The attorney asked her why the copy of this cheque butt attached to her affidavit had no date whereas this one bore the date 21 April 2014, in different handwriting to what she said was her mother's. The attorney said she had not made the alteration and did not know when or why it had been made. She added that the copy she presented was part of a book of cheques where the next cheque was also visible and it bore the same date, so it was possible her sister IUC had written the date in when helping sort out documents after her mother's death.
10. Asked why there were no cheque butts for the year 2013, the attorney said she had not been able to find those cheque books, which related to the time when her mother was managing her own affairs, and thought they may have been taken by another family member.
11. The attorney was not contradicted about her evidence that her mother had bought a new car for ZNZ in the year the principal's husband died. Otherwise, the attorney responded to questions to add that her aunt had in the past been paid for helping the principal with bookkeeping, but after her father died her mother had employed a bookkeeper and ZNZ did not do that work. She agreed that the principal and ZNZ had been estranged for a period but said that even when they were fighting, her mother had looked after ZNZ.
12. IUC said in her affidavit of 24 February 2020 that ZNZ was a single mother, who had always been helped by her parents. She said that her mother gave ZNZ money twice a year and wanted this to continue. The applicant chose not to cross-examine IUC.
13. The attorney also said when cross-examined that she had been present when her mother gave cheques to ZNZ when she was visiting. When asked why she had not brought ZNZ to the hearing, she said that ZNZ is 84 years old, and it was not consistent with her dignity to embarrass her by asking about the support she received from her sister. The attorney said her parents' support for ZNZ had been secretive, even the children did not know about all the payments.
14. In her affidavit, dated 28 January 2020, the applicant speculated that the attorney had paid money to ZNZ because ZNZ provided an affidavit to VCAT in support of the attorney being allowed to continue her role, when the parties were in dispute about this. There was no evidence to support that speculation; it was not put to the attorney and I have discounted it.
15. The applicant's counsel submitted that the attorney's payments to ZNZ were arbitrary and there was no evidence the principal had wished for ZNZ to continue to receive such payments.
16. I accept the attorney's evidence that her mother, before she was incapacitated, supported ZNZ with approximately half yearly payments of $10,000 and occasional presents. Besides the attorney's evidence that she witnessed this occur, her sister IUC gave the same evidence, adding some detail which explained ZNZ's need for some support.
17. I was satisfied on the whole with the attorney's answers to questions about the cheque butts she produced to show that her mother made such payments before she was incapacitated. I was impressed by her evidence that her mother was generous and wanted to support her sister but did not make this generally known, for example quietly handing over a pre-prepared cheque when her sister visited for dinner. It was not surprising that the applicant, who lives in Queensland, was not aware of these arrangements.
18. From the date of the principal's loss of capacity in October 2015 until her death in June 2018, there is a period of 32 months. If ZNZ received $10,000 every six months that would amount to around $50,000. Then a further $15,000 is accounted for by the attorney's evidence that a payment in July 2017 was for work on ZNZ's teeth and for her birthday.
19. Taking all the evidence into account, I was comfortably satisfied that the attorney was justified in forming the view that her mother if she had capacity would have wanted those amounts made available to her sister.
20. Mr Muldoon said the principal's estate as he understood it had net assets in excess of $6 million. In addition, the Family Trust, as he reported it, had net assets of over $3 million. I understand there were also assets in Singapore and note that the attorney mentioned in her evidence that her mother's assets were worth a total of $16 million. Even if the estate was only $6 million plus the Family Trust, payments of $65,000 over 32 months to ZNZ are reasonable in the circumstances I have found - namely that the principal had a habit of making such gifts to ZNZ.
21. It is true that there was no specific authority for the attorney to make these gifts. In my view however, they were relatively small in the circumstances and were reasonable and consistent with principal's wishes and previous behavior.
22. Had the attorney sought the Tribunal's advice (whether under section 125V of the Instruments Act or under section 65 or 121 of the POA Act) about whether these gifts could continue be made and produced the evidence she has now done about the pattern of payments to ZNZ, in all the circumstances the Tribunal could properly have advised her that the gifts could continue.
23. Since the attorney was, as, I have found, acting in accord with the wishes of the principal, I could not be satisfied that the attorney had contravened the POA Act by making these gifts.

1. The examiner found that the principal's accounts revealed that $28,210 had been gifted to parties other than ZNZ during the period under review. In Annexure G to his report, he outlined the major amounts as follows:

1. on 2 March 2017, $5,000 to CHX for his 21st birthday; 2. on 1 May 2017, $5,000 to LCV for her 21st birthday;

1. on 2 May 2017, $2,000 to [first name redacted] for her birthday; and

1. on 3 July 2017, a gift of $15,000 to an unknown person.
2. CHX and LCV are the son and daughter of the attorney, who each turned 21 after the principal's stroke.
3. There was no evidence about the identity of [first name redacted] or what was the purpose of the $2,000 gift. The applicant gave no evidence about this allegation and asked no questions of the attorney about it. The attorney gave no evidence about it either.
4. The gift of $15,000 on 3 July 2017 has been dealt with above.
5. There was no evidence about the remaining $1,210 of gifts which would make up the rest of the $28,210 found by the examiner, so I am unable to consider that amount.
6. The applicant gave evidence that her parents recognized 18th birthdays as significant rather than 21st birthdays and that her own children had not received $5,000 for their 21st birthdays. Further, she said had received her $5,000 11 months before her 21st birthday and the $5,000 to CHX was given some months after his birthday.
7. The applicant submitted that the attorney preferred to make financial gifts of cash to her own children over any of the principal's other grandchildren.
8. The applicant produced a statutory declaration from her daughter POV who was also cross-examined. POV's evidence was that she received shares worth $10,000 from her grandparents for her 18th birthday and small amounts for birthdays and Christmas. She said she did not receive $5,000 on her 21st birthday in 2008. She agreed in cross-examination that in 2013 her grandmother paid $22,000 towards a new car for her. She said that since her grandmother's stroke in October 2015 she had received no gifts from her, although she had turned 30 in that time.
9. Both the attorney and her sister IUC[8] gave evidence that POV also received $2,000 from her grandmother for an overseas trip in 2015 before the principal's stroke.
10. The applicant also produced a statutory declaration[9] from her son JFD, who was not available for cross-examination. He said his grandparents had given him gifts for his graduation and marriage and other small amounts for birthdays and Christmas. He said he was given shares worth $10,000 for his 18th birthday and that he did not receive $5,000 on his 21st birthday. His statutory declaration did not mention what amount he had received on that occasion.
11. The attorney maintained that a $5,000 cheque to JFD (from the principal before her stroke) was a birthday present. JFD's evidence was that it was for his wages which were paid into his grandfather's account as he did not have an account in London. The attorney contended this did not make sense because it was paid at the end of his time overseas and he would have needed wages to live on in London. IUC said in her affidavit[10] that JFD would have had access to his grandfather's bank account in London, so it did not make sense for him to receive a cheque for $5,000 at the end of that time.
12. JFD was not available to answer those questions. I would also have liked to ask why the wages cheque came to the exact amount of $5,000. Since JFD was not available to answer those questions, I cannot give his evidence the same weight as I do to that of his mother and the attorney herself.
13. The applicant agreed that JFD received $1,000 for his graduation and $5,000 on his marriage.
14. However, she did not deny that the only 18th or 21st birthdays occurring during OQV's period as attorney after the principal's stroke had been the birthdays of the attorney's children and DTW, son of their sister IUC.
15. The applicant contended in her affidavit that there was no evidence DTW had received $5,000 on his 21st birthday. However, the attorney said that had happened. She produced a statutory declaration from DTW saying that he recalled his grandmother saying she was giving $5,000 to each grandchild for their birthday. He said her stroke occurred one month before his 21st birthday and that he did receive his $5,000. He was not cross-examined.
16. LCV, daughter of the attorney produced a statutory declaration dated 24 February 2020 and attended for cross-examination. She said her grandmother was kind to everyone around her and very generous. She said that she, her sister PWZ, her brother CHX and her cousin DTW each received $5,000 for their 21st birthday. LCV said she had discussed with her grandmother that she would receive her 21st birthday present early and spend it on her planned trip to Europe, which she had done. When cross-examined, she agreed she received $20,000 from her grandmother for her 18th birthday and said that other grandchildren had received the same.
17. PWZ produced a statutory declaration dated 24 February 2020. She said her grandparents were generous people and gave gifts to their grandchildren for milestone occasions. IUC in her affidavit supported this evidence in that she said the principal presented PWZ with a cheque for $5,000 at her 21st birthday party in April 2015. She said that her siblings and her cousin DTW truly appreciated their grandparents' generosity. She was not cross-examined.
18. On this basis of this evidence, I find as follows:

1. Before the principal's stroke, PWZ received $5,000 directly from the principal for her 21st birthday in early 2015. 2. The applicant's daughter POV did not receive $5,000 from the principal when she turned 21 (which occurred before the principal's stroke).

1. POV did receive other generous gifts from the principal before her stroke.

1. JFD received generous gifts from the principal (and his grandfather) before the principal's stroke. 2. JFD received $5,000 from his grandparents in 2007 which may have been a gift or may have been to cover his wages paid to their account. On balance, given the rounded amount and the unanswered questions about this amount, I am not satisfied it was given only in reference to wages. 3. PWZ's brother CHX received $5,000 from the principal via the attorney, his mother. This amount was a gift for his 21st birthday. I accept his mother's and IUC's evidence that he cashed the cheque some months later, giving the (incorrect) impression it was not given for his birthday. 4. LCV, sister of PWZ and CHX received $5,000 from the principal via the attorney as a 21st birthday gift. I accept her evidence and that of the attorney that it was an early birthday gift because she was going overseas.
2. There is sufficient evidence to establish that if section 67 of the POA Act applied, the gifts to LCV and CHX which the applicant complains about, would have been allowed. The applicant has not complained about the gift to DTW, but it falls into the same category. That is, all three of these gifts were of a reasonable amount, made to a relative of the principal for a special event.
3. Section 67 does not apply to an old power of attorney like the one held by the attorney. However, had she approached VCAT seeking advice, either under the POA Act or under section 125V of the Instruments Act, I am comfortable she would have been given permission to make those gifts, given the large size of the principal's estate, that they were comparatively small gifts (though of course not small sums in themselves) and that they were to the principal's grandchildren, when she was in the habit of making such gifts for birthdays and special events.
4. In those circumstances, the making of those gifts cannot be seen as causing a loss to the principal's estate.
5. Since I have no evidence about the gift to "[first name redacted]" or the other smaller gifts referred to by the examiner, I can make no findings about them. However, after carefully examining the circumstances of the other gifts about which the applicant complains and finding that they were appropriate in all the circumstances, I am not in a position to assume that the other gifts were inappropriate.
6. For these reasons the whole of the claim about gifts given by the attorney is dismissed.

1. The examiner reported that from July 2016, the attorney commenced paying herself a "management fee" for administering the principal's affairs, at the rate of $1,500 per month. For the period 29 July 2016 to 29 March 2018, this fee totaled $45,000. He included in his report a copy of the attorney's note written to him detailing her reason for the fee.
2. In addition, the attorney paid herself a further two amounts of $1,500 after the period of the examiner's report. The applicant therefore sought that the principal's estate be compensated in the amount of $48,000 regarding this fee.
3. Section 70 of the POA Act provides:

An attorney under an enduring power of attorney is not entitled to any remuneration unless it is specifically authorised by the enduring power of attorney or by law.

1. Section 70 is not one of the sections of the POA Act specified in section 142(2) as applying to old powers of attorney, such as the one held by the attorney. However, it is consistent with the common law which applied at the time the power was given. That is, it is consistent with the fiduciary duties of the attorney. In brief, those duties are that the attorney should not except with the principal's informed consent profit out of the relationship with the principal or act where the attorney's interests conflict with those of the principal.[11]
2. At the time the principal in this case conferred the power of attorney on the attorney, the Instruments Act did not require that the attorney sign a statement of acceptance acknowledging that she must act with reasonable diligence and avoid acting where her interests conflicted with those of the principal. Section 125B of the Instruments Act which required that undertaking came into operation in April 2004. However, the absence of such an acknowledgement does not release the attorney from her fiduciary duties.
3. If the attorney has without the consent of the principal profited from the relationship or acted for her own benefit in conflict with the interests of the principal and thereby caused a loss to the estate, then an order can be made under section 77 that she compensate the estate for that loss.
4. The applicant's evidence (in her statement dated 28 January 2020 and at the hearing) was that she herself had assisted her mother with the Family Trust accounts and had never been paid and the same happened to their sister ENH, she said. Further, the applicant said that the attorney, since their mother's stroke, had received over $400,000 from the Family Trust and their mother would have been horrified to know that the attorney paid herself from their mother's money in addition to that.
5. The applicant also said that a former domestic helper UPI, who was not well-off, visited her mother at the nursing home regularly and was not paid.
6. Further, the applicant said, their mother was in a nursing home designated as providing high care - implying that she did not need the extra care the attorney said she was providing.
7. The attorney's evidence was as follows:

1. the principal's stroke left her paralysed on one side and unable to speak eat or read. She was fed via percutaneous endoscopic gastrostomy (PEG); 2. the attorney was her mother's primary carer after the stroke, visiting her daily for a few hours each day, attending physiotherapy sessions with her three times a week (providing the essential second person to support the principal at times) and speech therapy sessions so her mother could learn to swallow again and the attorney could observe the exercises and help her mother practice to be able to eat some soft food;

1. the attorney made medical and dental appointments for her mother and accompanied her to them, sat with her each lunchtime and fed her slowly, dropped in regularly at night to reassure her mother, took her for strolls outside in the afternoons and on weekends;

1. while she did not dispute the nursing home provided high level care, the attorney said it was not resourced to provide the companionship care and reassurance which the attorney provided for her mother and without her presence her mother might have been neglected; 2. the attorney resigned from her job as a psychologist, where she earned over $100,000 per annum working part time, so she could care for her mother; 3. the attorney's sister IUC approved the payment to the attorney of $1,500 per month; 4. out of that money the attorney purchased fruit flowers and magazines for her mother; 5. the applicant and her other sister ENH visited only rarely and did not respond to her requests for assistance in providing this level of care for their mother. In this regard the attorney produced some emails to which she said she had received no response; 6. her mother had always insisted she did not want to be a burden and said the family should hire round-the-clock carers for her if needed; 7. when cross-examined about the above point, the attorney said that her mother asked for that on the assumption she would be at home to be cared for - never expecting to be in a nursing home - but sadly the attorney had not been able to make that work given that her mother's care needs were so high; 8. when asked why she paid herself instead of hiring someone, the attorney said the nursing home would not allow an extra nurse to be employed solely for her mother and while she had tried for other carers in the end she just kept doing it herself;

1. the attorney said she emailed her sisters and said she would pay herself to provide care and received no response except one suggestion that someone could be hired to provide companionship;

1. attached to the attorney's affidavit was an email she sent her sisters in November 2017 saying she wanted to return to work and setting out the cost (which she had researched) of paid carers to augment their mother's support at a cost of $55 per hour (up to $6,020 per month) and indicating she would go ahead with hiring, but received no response except from one sister IUC approving; 2. when cross-examined, the attorney denied she did not need the job she gave up - she said she loved it and that it was not proven that her share of the family trust payments (equal to her sisters' shares) was sufficient for her family; 3. their mother had paid help and companionship after her husband's death and before her stroke and always insisted that people were paid for anything they did for her; 4. when cross-examined, the attorney said she did not know she was not entitled to be reimbursed as attorney, but the payments were for the time she spent caring for her mother; and 5. the attorney and her sister IUC said that UPI was paid for coming weekly to spend time with the principal and take her to Mass at the nursing home.
2. IUC provided an affidavit dated 24 February 2020 and was not cross-examined, although she attended and was available. IUC said:

There is no question that our mother would have insisted that the Attorney be properly paid. ...our mother was a generous lady and a proud woman who did not want to be a burden to anyone. She had the resources to spend on people helping her with her affairs and care.

1. I accepted all this evidence and find as follows:

1. the attorney attended her mother many hours per week at her nursing home and provided companionship, support and care; 2. it was consistent with the weight of the evidence about the principal's generosity and wish to pay for help that the attorney be paid for the care she provided;

1. while the principal had spoken to her family of having round-the-clock paid carers that was evidence that she did not wish to be a burden, not that she would only pay for care from people outside her family;

1. the attorney provided a level of companionship support and care which was what the principal wanted and needed; 2. hired companion carers would have cost three or four times more than what the attorney paid herself; 3. the payments to the attorney were for the care she provided rather than for performing her role as attorney for the principal; 4. the principal was well able to afford to pay the attorney for her hours of care; and 5. in those circumstances, the attorney's actions did not cause a loss to the estate.
2. Properly speaking, the attorney should have sought approval from VCAT for her proposal to use the principal's funds to pay herself to provide care for the principal. Technically, she may have been in breach of the relevant law. Had she asked for approval, she would have been protected from any accusation that she was profiting from her role as attorney or acting in conflict with the interests of the principal.
3. However, the fact that she did not do so does not automatically indicate she acted in breach of her duties to the principal.
4. I find that the attorney provided valuable support to the principal and received a relatively small payment for her time. In all the circumstances, including the much higher cost of paid carers or companions, it cannot be said this was a loss to the principal's estate.
5. The application for compensation to the estate for the amounts paid to the attorney is dismissed.

1. The applicant confirmed at the hearing (in her counsel's written submissions) that there is no outstanding issue in relation to reimbursement of electricity and other charges connected to the property at [exact address omitted] in B Parade Anglesea.
2. In relation to another property at [exact address omitted] H Street Anglesea, the applicant also abandoned any claim for utility charges. Her counsel submitted that the applicant did so in light of the attorney's evidence that the property was intended by the principal to be a family holiday house, even though the principal had transferred it to the attorney.
3. The attorney's position about this was that her mother always paid for the charges for this house because it was intended as family holiday house and most members of the family used it in the period, including their cousins and even the applicant's son.
4. No further determination about charges for the principal's property is required as the compensation claim about them is not pursued.

LEGAL EXPENSES - LITIGATION ABOUT THE PRINCIPAL'S HOUSE

1. Mr Muldoon's report identified this issue as follows:

The attorney has paid legal fees in excess of $248,000 in the period under review. My investigation of the make-up of this amount reveals that they relate to a dispute with the Heritage Council of Victoria in relation to the principal's property at [address omitted],Victoria. It appears that the principal was unsuccessful in the legal action and was required to pay $133,880 (exc GST) in full and final settlement of the costs orders arising from the proceedings. The balance of the amount relates to the principal's own legal costs regarding the proceedings.

1. The applicant, in her affidavit dated 28 January 2020, made several allegations about the attorney's decision to seek leave to appeal a decision of the Supreme Court in the principal's action against the Heritage Council of Victoria.
2. First, the applicant said that the attorney had sought leave to appeal against the advice or direction of VCAT which the applicant said was given at a Guardianship List hearing on 4 February 2016. The applicant said the attorney agreed to this.
3. The attorney's evidence in her affidavit, dated 24 February 2020, was that she had no recollection of agreeing to take the litigation no further. She noted that no order was made to stop the litigation.
4. The orders made at that hearing notably rejected the application for a guardian and administrator to be appointed for the principal and for the powers of attorney to be overridden. They left the attorney in control of the principal's affairs. The orders do not mention the litigation. No transcript or other material was produced to support the applicant's contention. While the litigation may well have been discussed that day VCAT gave no formal direction to the attorney about it.
5. Accordingly, I do not find that the attorney acted against VCAT's direction in seeking leave to appeal.
6. The applicant also alleged that the attorney sought leave to appeal "against the advice of her legal counsel".
7. The attorney's evidence about that was:

the legal advice that was given to me was that we had a chance to win. ...and if we did win the valuation of the property would increase from approximately $1,500,000 to over $5,000,000.

She added: "the barrister did not charge me for his services".

1. The applicant does not say how she formed the view that the attorney had legal advice not to proceed. I have no reason to doubt the evidence of either the applicant or the attorney, but it seems the attorney is in a better position to know what advice she received. Accordingly, the applicant has not proved that the attorney acted against her legal advice.
2. The applicant pointed out that one of the Justices in the decision of the Court of Appeal said: "the application for leave to appeal was utterly hopeless and should not have been brought".
3. I have read the judgement in that proceeding. I do not cite it here because that would reveal the name of the principal and other parties and there is no need to do so. The judgement sets out the history. At the end of a struggle lasting several decades, the principal made an application in the Supreme Court in April 2015, seeking to have her property removed from the Victorian Heritage Register.
4. During the time the Court's decision was reserved, the principal suffered a stroke. The attorney was appointed as litigation guardian for the principal. In December 2015, the application was rejected. The principal was ordered to pay the costs of the other parties.
5. The attorney as litigation guardian then sought leave to appeal in the Court of Appeal. Leave was refused. The judgement of two of the three Justices of the Court of Appeal explained the decision of the Court at length. After that, the third judge agreed with them and added the remarks to which the applicant refers.
6. Those remarks do not indicate that the attorney failed in her duty to act diligently and in the interests of the principal. The attorney as litigation guardian had the advice of a solicitor and of the counsel who represented her in the Court of Appeal and was entitled to rely on that advice. When cross-examined, she added that at the end of the Supreme Court proceeding the judge said to her "I assume you will appeal". Further, she said her lawyers advised there was a chance of success in the Court of Appeal and her barrister charged no fee for the Court of Appeal proceeding.
7. The applicant also gave evidence that her mother had told her in 2015 that:

this was her final court case against the Heritage Council... Depending on the outcome she would either sell the property to pay all legal fees or she would develop it if she won. This would be her last court case.

1. The attorney's response was that she knew "without a doubt" that her mother would have gone for the appeal. She said she interpreted her mother's reference to the last court case as including an appeal. She noted that her mother had the means and more to pay the legal fees and would not have needed to sell the property to do so.
2. Under cross-examination, the attorney maintained that she was acting in accord with her mother's wishes
3. The evidence about what was covered by the $248,000 payment was unclear. Mr Muldoon said he verified the payment but did not form a view about what it was intended to cover. The attorney said it included costs for the Supreme Court matter initiated by her mother in 2015 as well as the appeal. She said when asked that she could not determine which part of the amount paid was attributable to the application for leave to appeal. In any case, it was unnecessary to pursue this since I was satisfied it was not a breach of duty for the attorney to pursue this appeal.
4. IUC, sister of both the applicant and the attorney, supported the attorney's evidence about their mother's wishes. She said in her affidavit, dated 24 February 2020, that her mother had asked her to continue the fight with the Heritage Council in the event of her death. IUC is the principal's executor. She was not cross-examined about her evidence. She said that the reason the applicant was not aware of her mother's intentions was that the applicant was estranged from her mother.
5. At the hearing, the applicant suggested that the attorney was pursuing her own interests in going ahead with the appeal because the attorney has a property which borders the principal's property which was the subject of the dispute, so stood to benefit from any development of the principal's property. The attorney denied the properties had a common boundary. From the descriptions given by the parties, I was satisfied the properties at least met at one point.
6. However, the attorney's evidence was that her mother had wanted all the family to be able to enjoy the property. She insisted that she went ahead on her mother's behalf because it was her mother's wish. She pointed out that the principal's property would have increased in value considerably and the whole family would have benefitted by the increased value of the property if it could have been developed.
7. In all these circumstances, I was not persuaded that the attorney had acted in conflict with the principal or in breach of any duty she owed to the principal. At worst, her decision to seek leave to appeal may have been unwise. Even that is only established by hindsight, as the attorney submitted.
8. Lack of wisdom is not a breach of duty. The attorney's evidence, which I accept, was that she acted in accord with her mother's wishes She pursued to the end litigation which had occupied the principal for many decades. Further, the fees or costs of $248,000 as far as I could ascertain, included the original proceeding brought by her mother as well as the costs order. There was no reason for the attorney to be held responsible for the cost of that original proceeding, since the principal herself initiated it.
9. Having considered all the matters raised by the applicant about this, I am not satisfied that the attorney should be held personally responsible for any of the legal fees or costs associated with the principal's dispute with the Heritage Council, including the application for leave to appeal to the Court of Appeal.
10. Accordingly, this part of the application for compensation is dismissed.

1. No part of the compensation claim has been proved and accordingly the whole of it must be dismissed.

[3] This is how the claim about these expenses was described in the applicant's legal submissions.

[4] See MYJ [2019] VCAT 792 [31] - [41].

[5] GE Dal Pont Powers of Attorney (2nd edition, 2015 LexisNexis Butterworths).

[7] Inquiry into powers of attorney Final report of the Victorian Parliament Law Reform Committee August 2010, 201 [7.2.5].

[8] Affidavit of IUC dated 24 February 2020 [7].

[9] Statutory declaration for JFD dated 10 February 2020.

[11] See: GE Dal Pont Powers of Attorney (2nd edition, 2015 LexisNexis Butterworths) 8.31 and generally Halsbury's Laws of Australia, (LexisNexis Australia) Topic 15 Agency).