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 2019 that identifies or could lead to the identification of a party to the proceeding.**

1. This decision concerns the reassessment of a guardianship order in respect of ICV.[1]
2. ICV was born in Italy in 1933 and came to Australia in the 1950's. She is now 91 years old.
3. On 4 December 2017, she had a fall at her home in North Coburg, Melbourne. She was taken to the Royal Melbourne Hospital by ambulance. On 8 December 2017, she was transferred to an aged care ward at the hospital's Royal Park campus for further assessment and discharge planning.
4. On 15 January 2018, a social worker employed by Melbourne Health applied to the Tribunal under the Guardianship and Administration Act 1986 (Vic) (the old Act) for orders appointing a guardian and an administrator for ICV. The application was supported by a neuropsychological assessment report by Dr Genardini, a clinical neuropsychologist at the hospital.
5. Following a hearing on 16 April 2018 the Tribunal made orders appointing the Office of Public Advocate (OPA) as a limited guardian for ICV, and State Trustees Limited as her administrator.
6. ICV and VMS, ICV's son, appealed the 16 April 2018 orders to the Supreme Court.
7. In June 2018 the OPA accepted a permanent placement at the Doutta Galla Lynch's Bridge facility on behalf of CV and, on 26 June 2018, she was transferred to the Lynch's Bridge facility, where she currently lives.
8. On 14 March 2019, the Supreme Court granted ICV and VMS's appeal[2] and the Tribunal's orders of 16 April 2018 were set aside. As the OPA foreshadowed a further guardianship application, the Supreme Court order was stayed for seven days.
9. On 18 March 2019, the OPA applied for a temporary guardianship order. This was granted by order dated 20 March 2019, with effect until 10 April 2019.[3] On 25 March 2019, VMS made an application under section 75 of the VCAT Act for summary dismissal of the OPA's 18 March 2019 application.
10. On 12 April 2019, Judge Jenkins dismissed VMS's application for summary dismissal and made a guardianship order appointing the OPA as limited guardian for ICV.[4] The guardianship order provided that it was to be reassessed no later than 30 June 2019.
11. Subsequently, VMS filed two separate appeals in the Supreme Court. The first appeal on 10 May 2019 was against the dismissal of the section 75 application for summary dismissal. This appeal was unsuccessful, and all avenues of appeal were exhausted. The second appeal, on 4 November 2020, against the granting of the guardianship order, has not progressed to hearing. This partly explains the delay in listing the reassessment hearing.
12. When reassessing a guardianship order the Tribunal considers the application afresh applying the applicable legal principles in section 30(2) of the Guardianship and Administration Act 2019 (Vic) (GA Act) to the current facts at the time of the reassessment.
13. For the reasons which follow, on completing a reassessment of the order, the guardianship order is revoked.

1. The Tribunal's orders of 12 April 2019 provide the following:

The Tribunal is satisfied that the proposed represented person has a disability; is unable by reason of that disability to make reasonable judgments about their person or circumstances; and needs a guardian.

The Tribunal orders that:

1. The Public Advocate, Office Of The Public Advocate 1/204 Lygon Street, CARLTON VIC 3053, be appointed limited guardian of the represented person with powers and duties:

to make decisions concerning accommodation

to make decisions concerning medical treatment as defined in the Medical Treatment Planning and Decisions Act 2016

to make decisions concerning access to services

1. The Tribunal approves delegation by the Public Advocate of the Public Advocate's powers and duties as guardian of the represented person to an officer or employee employed in the office of the Public Advocate.
2. This guardianship order be reassessed no later than 30 June 2019.
3. The guardian shall, no later than 3 business days prior to the date on which this order is to be reassessed, provide to the Tribunal a written report concerning the represented person and decisions made by the guardian on behalf of the represented person.
4. This order shall continue to have effect until further order of the Tribunal.
5. The guardian shall immediately notify the principal registrar in writing of any change of address of the represented person or the guardian.
6. ICV and VMS give access to their home, at a mutually convenient time, to a representative of the Public Advocate, together with any other relevant health professional approved by the Public Advocate, such as an occupational therapist and aged care assessment service, for the purpose of making an assessment of the suitability of facilities in the home for the proper and safe care of ICV, if she were returned home.
7. VMS will engage with relevant staff at the Doutta Galla Lynch's Bridge aged care facility in Kensington, including the physiotherapists and registered nurse who provided reports for the Public Advocate, with a view to obtaining instruction as to the operation of mechanical aids in the home and administration of nursing care to ICV.
8. The Public Advocate will obtain updated reports from the physiotherapists and registered nurse as to instruction and training given to VMS and as to his skill, knowledge and competence in caring for ICV, should she be returned home.

The represented person, the applicant, or any other person may apply to the Tribunal for a reassessment of this order at any time.

1. Following the making of the order under review, new legislation was enacted, being the GA Act.
2. The general principles that a person exercising a power, function or duty under the GA Act must have regard to are set out in section 8, which provides:

(1) A person exercising a power, carrying out a function or performing a duty under this Act must have regard to the following principles -

(a) a person with a disability who requires support to make decisions should be provided with practical and appropriate support to enable the person, as far as practicable in the circumstances -

(i) to make and participate in decisions affecting the person; and

(ii) to express the person's will and preferences; and

(iii) to develop the person's decision-making capacity;

(b) the will and preferences of a person with a disability should direct, as far as practicable, decisions made for that person;

(c) powers, functions and duties under this Act should be exercised, carried out and performed in a way which is the least restrictive of the ability of a person with a disability to decide and act as is possible in the circumstances.

(2) In subsection (1), the reference to a person exercising a power, carrying out a function or performing a duty under this Act includes VCAT.

1. With respect to when the Tribunal should make a guardianship order, Section 30 of the GA Act provides:

VCAT may make a guardianship order or administration order

(1) After considering an application made under Division 1 -

(a) VCAT may make one or more of the following orders -

(i) a guardianship order, subject to subsection (2);

(ii) an administration order, subject to subsection (2);

(iii) a supportive guardianship order under section 87, subject to Part 4;

(iv) supportive administration order under section 87, subject to Part 4; or

(b) VCAT may make no order under this Act.

...

(2) VCAT may only make a guardianship order or an administration order under this Division if satisfied that -

(a) because of the proposed represented person's disability, the person does not have decision-making capacity in relation to -

(i) in the case of a guardianship order, the personal matter in relation to which the order is sought; or

(ii) in the case of an administration order, the financial matter in relation to which the order is sought; and

(b) the proposed represented person is in need of a guardian or administrator, as the case requires; and

Note

Section 31 sets out factors to consider in determining whether a person is in need of a guardian or an administrator.

(c) the guardianship order or administration order, as the case requires, will promote the proposed represented person's personal and social wellbeing; and

(d) in the case of an application for an administration order for a proposed represented person who does not reside in Victoria, State Trustees has not been authorised under section 12 of the State Trustees (State Owned Company) Act 1994 to collect, manage, sell or otherwise dispose of or administer any property in Victoria in relation to which the administration order is sought.

1. Section 31 provides the following factors are to be considered in determination of the need for a guardian:

Factors to consider in determining need for guardian or administrator

For the purposes of section 30(2)(b), in determining whether a person is in need of a guardian or administrator, VCAT must consider the following -

(a) the will and preferences of the proposed represented person (so far as they can be ascertained);

(b) whether decisions in relation to the personal or financial matter for which the order is sought -

(i) may more suitably be made by informal means; or

(ii) may reasonably be made through negotiation, mediation or similar means;

(c) the wishes of any primary carer or relative of the proposed represented person or other person with a direct interest in the application;

(d) the desirability of preserving existing relationships that are important to the proposed represented person.

1. Whilst the original guardianship order in this matter was made pursuant to the old Act, section 204 of the GA Act provides reassessments of orders under the old Act are reassessed under the new Act:

Reassessments of orders made under the old Act

(1) A reassessment of an order made under the old Act (irrespective of whether the application for the reassessment is made before or after commencement day or on VCAT's initiative before or after commencement day) that is not determined before commencement day must be conducted in accordance with the new Act.

(2) Despite anything to the contrary in subsection (1) -

(a) in the course of conducting the reassessment, VCAT is not to consider whether, as the case requires -

(i) the guardian appointed at first instance has performed duties in compliance with section 41 of the new Act; or

(ii) the administrator appointed at first instance in an administration order has performed duties in compliance with section 55 of the new Act; and

(b) on completing the reassessment, VCAT -

(i) must revoke the order; and

(ii) may make an order under the new Act.

(iii)

1. The relevant standard of proof is the balance of probabilities taking into account the Briginshaw principles. The more serious the alleged misconduct or gravity of the consequences flowing from a finding, the greater the level of satisfaction required.[5]

1. As noted above, on 12 April 2019 Judge Jenkins made orders appointing the OPA as limited guardian.[6] The orders included Order 4, which stated 'This guardianship order be reassessed no later than 30 June 2019'. Due to VMS's appeal to the Court of Appeal, on 26 September 2019, the Tribunal extended the time for reassessment to 'no later than 31 March 2020 or later if the appeals have not then been finally determined.'[7]
2. On 10 May 2019, VMS appealed Judge Jenkins' orders to the Supreme Court, asserting that Judge Jenkins had erred when she dismissed his application for summary dismissal. Leave to appeal was refused by Justice Forbes.[8] VMS appealed this decision, and the Court of Appeal refused leave to appeal.[9] On 9 September 2020 leave to appeal to the High Court was refused.[10]
3. On 4 November 2020, VMS sought leave to appeal, out of time, the order appointing a limited guardian made by Judge Jenkins on 12 April 2019. The eight grounds of appeal included the failure to consider mandatory requirements, reliance on Dr Straw and Dr Genardini's reports, and failing to consider ICV's human rights. This application was refused by the Prothonotary as an abuse of process. VMS subsequently sought a direction from the Supreme Court under rule 28A.04(5) of the Supreme Court (General Civil Procedure) Rules 2015 that the notice be accepted by the Court.
4. On 14 September 2021, Justice J Forrest granted this application and directed the appeal documents be sealed and filed.[11] This appeal was adjourned to a date to be fixed pending the outcome of VMS's application for judicial reviews of his criminal conviction for theft and fine for breach of the Legal Profession Uniform Law.[12] Special leave to appeal to the High Court was refused in one such proceeding, and leave to appeal has been refused by the Court of Appeal in the other. For the former, on 6 March 2025, VMS made a petition for mercy to the Attorney General. VMS has also indicated his intention to apply for special leave to the High Court out of time in respect of the latter. The appeal of Judge Jenkins' limited guardianship order has not yet been listed for hearing.
5. On 21 December 2020, the OPA made an application for an administration order pursuant to section 16(1)(b)(i) and 41(1)(d) of the GA Act.[13] The application noted VMS had been found guilty of theft and there were further criminal matters he was said to be involved in, and was made due to the OPA's concerns that pursuant to section 54(1) of the Powers of Attorney Act 2014 (Vic) that, having been convicted and found guilty of an offence involving dishonesty, VMS is no longer able to act as the financial attorney for his mother.
6. On 13 January 2021, at a directions hearing for the reassessment of the guardianship order and the application for an administration order, Senior Member Preuss made orders including that ICV submit to a neuropsychological examination organised by the OPA, and that VMS as attorney submit to the Tribunal various statements of income, expenditure, assets and liabilities. On 1 February 2021, VMS appealed these orders to the Supreme Court. The appeal is joined with that of Judge Jenkins' orders dated 12 April 2019 and adjourned to a date to be fixed. On 11 August 2021, the reassessment of the guardianship order was adjourned to a date to be fixed on request of VMS due to the pending appeals. Throughout 2022 and 2023 the Tribunal sought updates about the Supreme Court appeals, which remained adjourned due to VMS's criminal appeals.
7. On 4 December 2023, Doutta Galla made an application to be joined as a party to the OPA's application for an administration order proceeding, and on 22 December 2023 this application was granted by Senior Member Nihill. VMS has appealed this order. The OPA made a strike out application in respect of this appeal in the Supreme Court, which was upheld by Judicial Registrar Lorenz and VMS has appealed that decision. The appeal was heard by Justice Gray on 25 March 2025 who reserved his decision and advised his judgment will not be delivered before 1 June 2025.
8. During 2024 there were attempts by the OPA and Doutta Galla to obtain orders regarding the continued conduct of the proceeding, seeking the application for an administration order and reassessment of the guardianship order be listed.
9. On 9 July 2024, the OPA emailed the Tribunal asking that ICV's guardianship order be listed for reassessment.[14] On 23 August 2024, the OPA followed up this email, noting it had not yet received a hearing notice from the Tribunal in relation to the re-assessment of ICV's guardianship order and that she remained subject to an order made under more restrictive provisions of the old Act which should be re-assessed.
10. Section 61(1) of the old Act states:

The Tribunal must conduct a reassessment of a guardianship order -

(a) within 12 months after making the order unless the Tribunal orders otherwise; and

(b) in any other case, at least once within each 3 year period after making the order unless the Tribunal orders otherwise.

1. The preceding chronology explains why the reassessment order was further adjourned due to outstanding appeals of Tribunal orders and VMS's appeals of two criminal proceedings.

1. On 18 February 2025, the Tribunal conducted a directions hearing. The Tribunal made an order listing a hearing in relation to guardianship order reassessment and the OPA's application for an administrator on 8 and 9 May 2025.[15]
2. Although there is an appeal of Judge Jenkins' order still to be listed and determined, this does not act as a stay on Her Honour's orders.
3. Section 165(b) of the GA Act states the represented person must attend in person the reassessment hearing unless impracticable or unreasonable. Due to her mobility issues, ICV attended the hearing via Zoom from her room at Doutta Galla with the assistance of an Italian interpreter and her son VMS.
4. As the guardianship order was made under the old Act, section 204(2)(a)(i) of the new GA Act provides the Tribunal is not required as per section 166(a), to consider whether the guardian has performed duties in compliance with section 41 of the new GA Act.
5. The OPA filed a report by Ms Greenfield, ICV's Advocate Guardian, dated 30 April 2025 and VMS filed written submissions on behalf of his mother and himself dated 4 May 2025. VMS also filed two witness statements dated 4 May 2024 by himself and ICV.
6. At the hearing the OPA was represented by Ms Mackey, solicitor. VMS appeared for himself and ICV as a professional advocate. Mr Birkett, solicitor, represented Doutta Galla who was entitled to notice of the hearing as primary carer of ICV.[16]
7. At the commencement of the hearing, I spoke with ICV directly through the interpreter. I then heard submissions from Ms Mackey and Ms Greenfield, ICV's Advocate Guardian, spoke to her report. VMS made submissions, and Mr Birkett made a brief submission.

1. The OPA filed a report dated 30 April 2025 by the Advocate Guardian, Ms Greenfield. I refer to her evidence below.
2. I make three points about the OPA report.
3. Firstly, Ms Greenfield reported she had not made any decisions for ICV regarding accommodation when she was living at Doutta Galla. However, ICV described she was living there 'against my will'.[17]
4. Ms Mackey submitted the original guardianship order made on 16 April 2018 resulted in ICV being placed at Doutta Galla. This has not changed. I note the application for temporary guardianship authored by Jimmy Layley, Advocate Guardian, dated 18 March 2019 records that on 19 June 2018 he made an accommodation decision to accept a permanent placement at Doutta Galla's Lynch's Bridge facility for ICV and she has resided there since 26 June 2018.
5. Secondly, Ms Greenfield's report did not refer to section 30(2)(a), namely whether ICV has a 'disability' which affects her decision-making capacity.
6. Ms Mackey submitted the Public Advocate will not review capacity unless there are clear signs it is in issue, stating that unless there is an intervening act, it is not usual for the OPA to re-examine the issue. She gave the example of someone recovering from a coma to demonstrate a circumstance where, in contrast, there would be a need for re-assessment of capacity to decide if a guardianship order should be revoked. Further, in ICV's case, Ms Mackey submitted the incapacity finding has not been re-examined as the OPA had never been able to obtain an independent assessment of ICV despite orders by the Tribunal and Supreme Court.
7. Thirdly, Ms Greenfield had not been to see ICV prior to the re-assessment hearing. Ms Greenfield reported she spoke to ICV in December 2023 to ascertain her will and preferences. The next time she saw her was at Royal Melbourne Hospital in November 2024, at which time she was '...unable to respond ... potentially being asleep or otherwise not wanting to talk.'[18] Ms Mackey submitted the guardian would be in contact with Doutta Galla if ICV was sick but otherwise there is no need for further visits which could restrict her human rights if there has been no change to her situation and there are no decisions to be made.
8. Ms Mackey submitted that the OPA's position is that there is no need for a guardian to be appointed within the meaning of section 30(2)(b) of the GA Act, and that doing so would in fact restrict ICV's human rights when there are no decisions to be made.
9. Ms Mackey indicated the OPA's position to revoke the limited guardianship order was based on a key factor, namely the stability of ICV's current position. ICV currently has no care issues currently as she is accommodated at Doutta Galla, which has indicated she can stay, and all her care needs are met. Ms Mackey raised the prospect of the Tribunal seeking from VMS an indication of his and ICV's future plans and the need for VMS to organise appropriate in-home care for his mother given her current physical limitations should he wish to take her home. The OPA indicated concern that if ICV was taken from Doutta Galla that VMS alone could not care for her in a safe manner and expressed concerns about his understanding of her care needs. Ms Mackey indicated that if the Public Advocate was to become aware of ICV's removal from Doutta Galla without adequate planning or in-home supports then they would be advising the Tribunal, as safeguarding is a key function of the OPA.[19]
10. Ms Mackey also queried the value of the discharge summary and brain scans relied on by VMS to support his contention ICV does not have a disability nor issue with decision-making capacity. Ms Mackey submitted medical evidence should have been called as the materials of themselves do not assist in determination of decision-making capacity.[20]

1. In written submissions VMS noted in a re-assessment hearing the Tribunal is exercising its original jurisdiction. This means the hearing is not a review of Judge Jenkins' guardianship order.
2. VMS's principal submission is that ICV does not have a disability. Therefore, the factors under section 30(2) which the Tribunal must be satisfied of to make a guardianship order cannot be met.
3. The submissions note in November 2024 ICV was admitted to the Royal Melbourne Hospital for shingles. She had an MRI and CT brain scan which '...indicates that there are no abnormalities...'.[21] Further, there were no major changes noted from the earlier scans in 2017.[22]
4. VMS rejected neuropsychologist Dr Genardini's report and stated that '...it is not part of the records of the Hospital...as Genardini's report did not comply with mandatory legal requirements...'.[23] He submitted this material should be excluded from consideration as it was unlawful, and it would not be fair to ICV to take it into consideration.[24]
5. VMS distinguished other Tribunal cases where neuroimaging of the brain indicated changes indicative of cognitive impairment and dementia. In ICV's case he stated there is '...no formal diagnosis of any cognitive impairment.'[25] The submissions state:

...the most current medical evidence from the Royal Melbourne Hospital indicates that [ICV] does not have a disability as defined in s. 3(1) of the GAA and therefore the first requirement which this Tribunal has to be satisfied of before a guardianship order can be made does not exist.[26]

1. Therefore, he submitted, the current limited guardianship order '...must be revoked pursuant to s.167(1)(b) of the GAA.'[27]
2. VMS submitted the factors in section 30(2) (a) to (d) are cumulative and referred to Richards J in LG v Melbourne Health where she stated with respect to the old Act that '[s]ections 22(1) and 46(1)(a) impose three separate and cumulative requirements. Whether the person concerned is a person with a disability is only the first of those requirements...'[28]
3. With respect to future plans, VMS noted the plans for ICV to return home were interrupted by Judge Jenkins' limited guardianship order, which he argued prevented them from continuing to plan arrangements for ICV to return home.
4. VMS stated he would undertake being taught about 'changing' ICV and that he would make further inquiries about obtaining an appropriate hoist, an air mattress, and engaging nursing services to attend to her personal needs[29]. He noted that ICV previously engaged a nursing service and wore a pendant she could activate. He wanted to get a 'physio at least for a certain trial' as there was possibility there is some equipment available in order to get ICV 'upright' and to exercise her legs.[30] He emphasised that this would all be done in consultation with ICV, as she has the ability to decide and has made that clear.
5. He stated he was present when the speech pathologist recommended pureed food only for ICV and has complied with the requirement not to bring other food into her room since the issue was raised.
6. VMS submitted that the only modification required at ICV's home was a ramp at the front as there is a single step, and the bringing in of equipment in terms of mechanical aids such as the hoist. He indicated he already has equipment such as a tub chair and a wheelchair but will need a mechanical aid and training regarding transfers. He said he was in the process of making these arrangements before they were 'stopped in our tracks' by Judge Jenkins' order.[31]

1. Doutta Galla filed written submissions dated 1 May 2025. In these submissions Doutta Galla advised they did not intend to call any witness, make submissions or take any position in respect of the re-assessment hearing. This is because their interest is limited to the application for the appointment of an administrator.[32]
2. At the hearing Mr Birkett made the following oral submissions.[33]
3. He stated that neither VMS or the Tribunal has the appropriate expertise to interpret the MRI and CT scans in relation to the question of disability, which would require a radiographer or neurologist. Further, Mr Birkett submitted the scans were not produced for the purpose of ascertaining whether she had a cognitive impairment but rather were taken to deal with a particular ailment.
4. Further, the report of Dr Skehan, ICV's GP, dated 1 July 2023 notes she has a disability which has been evident for five years and is progressive. Professor Kwang Lim, a geriatrician, in his report of 17 September 2022 refers to ICV's 'likely dementia' and adopts the view of the neuropsychologist from the Royal Melbourne Hospital.
5. It was noted that ICV recorded a score of 19/30 in the Mini Mental State Examination (MMSE) and was submitted a score between 18 and 23 indicates mild cognitive impairment, with and a score under 18 considered severe.[34]
6. Disability as defined in section 3 of the GA Act includes a neurological impairment and does not require a formal diagnosis or name to be given to the condition, but rather the identification of an impairment.
7. In relation to question of disability, Mr Birkett submitted the evidence before the Tribunal, particularly from Dr Skehan and Professor Kwang Lim, is clear that ICV has an impairment which impacts on her capacity. Due regard should be had to those reports, particularly in circumstances where attempts to obtain other reports have been resisted by ICV.
8. Noting that VMS refers to the Royal Melbourne Hospital discharge summary as indicating there is no cognitive impairment, Mr Birkett submitted that is not what the summary says. He notes under 'past medical history' it indicates cognitive impairment not formally diagnosed, which goes against the conclusion alleged.

1. VMS reiterated his submission that ICV's Royal Melbourne Hospital discharge summary from December 2024 showed no cognitive impairment. He stated that if ICV had a diagnosis, it would be in the discharge summary. He submitted the Tribunal cannot be satisfied on the Briginshaw standard that she has an impairment.
2. Further, VMS noted Dr Skehan's report assumes ICV had been diagnosed with dementia on admission to Doutta Galla, stating he would have relied on the report by Dr Genardini which has since been removed from the Royal Melbourne Hospital records. Dr Skehan did not order any scans himself but just adopted the assumptions of the Dr Genardini report. Nevertheless, VMS emphasises that Dr Skehan finds ICV does have decision-making capacity in personal matters and can make decisions in this respect, supporting the contention that the guardianship order should be revoked.
3. VMS submitted that Professor Kwang Lim's reference to 'likely dementia' is inconclusive and not concise and clear proof which meets the Briginshaw standard. He notes ICV may have difficulties managing her finances, which VMS sought to distinguish from her ability to make decisions about her finances, stating that all she needs is support to carry out her decisions. He gave the example that he could take his mother to the bank, and she can speak Italian to staff and make decisions about her finances.
4. Relying on the case of RCF,[35] VMS submitted that the MMSE does not necessarily assess executive function.
5. VMS submitted that the reports of Dr Skehan and Professor Kwang Lim were only put in evidence to ensure the Tribunal knows ICV had capacity to execute a new enduring power of attorney. ICV was not relying on the whole of the reports of Dr Skehan and Professor Kwang Lim which have been overtaken by the recent scans, but rather simply those parts regarding capacity to appoint a new power of attorney.

1. In THD,[36] a case under the old Act, the Tribunal noted reassessment requires the Tribunal to undertake a fresh assessment of the evidence and not rely on an earlier decision. In making the decision the Tribunal can rely on evidence before it, including material on the Tribunal's file.[37]
2. THD was cited in MJG[38] which was under the new GA Act. In that case, the Tribunal stated that '...on reassessment, VCAT must make a fresh decision about whether the criteria for the making of an order, or orders, are satisfied.'[39]
3. As noted above, section 30(2)(a), (b) and (c) of the GA Act detail the requirements that must be satisfied when considering whether a guardianship order should be made.
4. I accept Richards J's comments regarding construction of the Old Act are applicable to the new GA Act and that the section 30(2) has three separate cumulative requirements.[40]

Section 30(2)(a) Disability and decision making

1. The main issue in dispute is ICV's disability and decision-making capacity.
2. VMS denies that ICV has a disability or that it affects her decision-making capacity in relation to personal matters.

Objection to Dr Genardini's and Dr Straw's reports

1. VMS contested the status of the neuropsychological report by Dr Genardini dated 18 January 2018.
2. Dr Genardini, clinical neuropsychologist, assessed ICV on 10 January 2018 when she was a patient at the Royal Melbourne Hospital and formed the opinion she had '...a cognitive disability (likely dementia) that impairs her capacity to make informed and reasonable decisions about medical treatment, her care needs, and her living circumstances'.[41]
3. As referred to above, VMS appealed to the Supreme Court against the Tribunal's original decision granting a guardianship order with respect to his mother. In his appeal grounds he submitted the report should not have been adduced under section 80 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and that Dr Genardini had not complied with ICV's human rights.
4. Justice Richards granted the appeal on a number of grounds and noted VMS had '...put a serious argument to the Tribunal that it would be unfair to [ICV] for it to receive and rely on Dr Genardini's report because, contrary to the Code, the assessment was done without [ICV]'s informed consent. In my view, the argument was worthy of consideration.'[42]
5. Issues identified by Richards J as to whether ICV gave informed consent, included ICV's clear wish to return home contrary to hospital staff recommendations, Melbourne Health arranging for the assessment for the purposes of the application for guardianship, and Melbourne Health disregarding VMS's request for any assessment to be in his presence and be conducted by a person independent of Melbourne Health.[43]
6. Following Richards J's judgement, the matter returned to the Tribunal before Judge Jenkins, then a senior sessional member. In her decision, Her Honour considered VMS's objections and Richard J's commentary, and was satisfied to admit and consider the report.[44] Judge Jenkins formed the view ICV has a disability and was unable by reason of the disability to make reasonable judgements concerning her accommodation, medical treatment or access to other appropriate services, and was in need of a guardian with respect to those limited matters.
7. VMS appealed this aspect of Judge Jenkins' decision on 4 November 2020 and as indicated above, it has not yet been listed for hearing. In response to a question from the Tribunal, which was not disputed, Ms Mackey explained the delay continued despite the resolution of VMS's criminal matters as VMS has not complied with procedural steps for the appeal to be listed and the OPA does not have the resources necessary to bring an application to have the matter struck out for want of prosecution.
8. In the interests of fairness, as the status of Dr Genardini's report is still in dispute and Judge Jenkins' order is subject to appeal by VMS, I do not intend to rely on the report for the purposes of this decision.
9. VMS also objected to Dr Straw's report, and his objection was part of his grounds of appeal considered by Richards J. The objection was based on Dr Straw having ticked the specialist box listing 'Aged care' as her specialisation. VMS disputed that Dr Straw had any specialisation, noting that Ahpra's register listed her registration type as 'general', and submitted that she was not qualified or competent to assess ICV's cognitive capacity.
10. Dr Straw's report is on a standard form provided by the Tribunals' Guardianship List. Dr Straw was a medical practitioner working at the Royal Melbourne Hospital who treated ICV during her time in the aged care ward at the hospital's Royal Park campus.
11. Justice Richards found no error of law by the Tribunal accepting Dr Straw's report as competent and professional, and stated the inference was available that by working in the hospital's aged care ward, Dr Straw had a degree of specialisation beyond that of a general practitioner and was competent to assess for dementia.[45]
12. Judge Jenkins had regard to Dr Straw's assessment dated 15 January 2018, noting Richards J found no error of law in relation to the Tribunal's previous reliance on her evidence.[46]
13. VMS has included in his grounds of appeal that Judge Jenkins erred in law by receiving and relying on Dr Straw's report because it was not fair to ICV and because Dr Straw breached the Code of Ethics.
14. As with Dr Genardini's report, in the interests of fairness, as Dr Straw's report is also in dispute and subject to appeal by VMS, I do not intend to rely on the report for the purposes of this decision.

History of requests for a further neuropsychological assessment

1. As noted above, the OPA has no information in its 30 April 2025 report concerning ICV's disability or decision-making capacity. Ms Mackey submitted the OPA had never been able to obtain an independent assessment of ICV despite numerous orders of the Tribunal and the Supreme Court.
2. When questioned about compliance with Supreme Court and Tribunal orders, VMS submitted the Supreme Court had never directed a neuropsychological report be obtained and that with respect to the Tribunal orders, it was ICV's right to refuse to have such an assessment.
3. From the materials filed by the OPA from previous hearings, it appears in July 2018 VMS sought a new neuropsychological report from Dr Judy Tang on the basis he disputed the validity of the neuropsychological assessment conducted by Dr Genardini.[47]
4. Mr Layley, ICV's previous Advocate Guardian, in response to VMS's request, made contact with the Royal Melbourne Hospital's Royal Park campus to establish whether there was clinical indication for ICV to undergo a new neuropsychological assessment and Dr Wishaw, Consultant Geriatrician, advised there was no reason to believe ICV's condition had improved to warrant a review of the original assessment.[48]
5. In June 2018 ICV moved into Lynch's Bridge.
6. On 23 July 2018, ICV was assessed by a registered nurse using the Psychogeriatric Assessment Scale (PAS), with results indicating she was in the severely impaired percentile of participants. As the assessment has been conducted in English, the OPA requested that the assessment instead be performed with an Italian interpreter. On 17 August 2018, Mr Layley was advised ICV was assessed using the PAS with an Italian interpreter and the result indicated 'a moderate cognitive decline'.[49] On 15 August 2018, in response to VMS's request for a new neuropsychological assessment, Mr Layley advised VMS that given updated advice from the Royal Melbourne Health consultant geriatrician, observations of ICV by staff at Lynch's Bridge, and the results of the PAS assessment, unless there was some indication of improvement it was '...unlikely [he] would consent to a new neuropsychological assessment.'[50]
7. Following a directions hearing in the Supreme Court in the lead up to LG v Melbourne Health on 19 February 2019, Richards J made a notation:

The parties are encouraged to cooperate to obtain a fresh neuropsychological assessment of the first applicant to be undertaken by a neuropsychologist or other suitably qualified expert agreed between the parties.[51]

1. In Mr Layley's affidavit dated 7 March 2019 he stated that, on 21 February 2019, he emailed VMS to confirm his decision to consent to ICV participating in a neuropsychological assessment with Dr Judy Tang. On 26 February 2019, he received an email from VMS informing him that ICV had decided not to participate in an assessment.[52]
2. In her orders Judge Jenkins noted, 'To date, VMS and his mother ICV have both refused to consent to such further assessment or cooperate with the Public Advocate for the purpose of arranging such suitable assessment.'[53]
3. On 13 January 2021, at a directions hearing at the Tribunal regarding the re-assessment of the guardianship order and the application for an administration order, SM Preuss made orders which included directing the represented person to submit to a neuropsychological examination to be arranged by the OPA.[54] As indicated above, this order is currently subject to an appeal by VMS.
4. This brief chronology explains why there has been no additional neuropsychological assessment of ICV. It also clarifies that in July 2018 VMS requested a new neuropsychological report from Dr Tang which was refused by the OPA. Since then, ICV has declined to be re-assessed and has appealed an order by the Tribunal directing she submit to an examination.

1. In my consideration of the evidence for the purposes of the reassessment, I take into account the material referred to in Judge Jenkins' decision which is on the VCAT file, excluding the reports of Dr Genardini and Dr Straw as explained above.[55] I take into account the OPA report, ICV's statement (and the eight attachments) and VMS's statement. I also had the opportunity to speak to ICV myself over Zoom, with an Italian interpreter, and in the presence of VMS.

1. On 30 April 2025, the OPA filed a report authored by Ms Greenfield.
2. Under the order dated 12 April 2019, the OPA was appointed limited guardian of ICV with powers and duties being:

to make decisions concerning accommodation

to make decisions concerning medical treatment as defined in the Medical Treatment Planning and Decisions Act 2016

to make decisions concerning access to services[56]

1. With respect to ICV's current circumstances, the report states:

[ICV] currently resides in permanent residential aged care. Her facility is in Kensington and is managed by Doutta Galla. [ICV] receives assistance for all aspects of personal care including preparing and eating meals, showering and dressing, medication management, and making appointments with any health professionals. I am informed that [ICV] receives regular visits from her son [VMS].[57]

1. The OPA report noted during the period of the current order (from 12 April 2019) the guardian made no decisions about where ICV lives and with whom, the guardian made no decisions about services and the guardian made no medical treatment decisions.[58]
2. With respect to ICV's will and preferences, the report states:

I first spoke with [ICV] in December 2023 about the reassessment of this guardianship order to ascertain her will and preferences. VCAT chose not to relist the guardianship application until now. [ICV] told me that she wants to go home and live with her son [VMS], and that she was possibly open to services but believed that her son [VMS] could do everything for her. At the time of our conversation, [ICV] did not appear to have insight into her high care needs and that one person would not be able to offer her 24-hour care. [ICV] did not see a role for OPA as a guardian in her life. My understanding was that [ICV] was opposed to both the continuation of the guardianship order and the continued appointment of the Public Advocate.[59]

1. The report noted ICV can continue to reside at Doutta Galla, and they will not terminate the care arrangement despite her owing a substantial debt.[60] Further, it stated that with the supports now in place, future decisions regarding services can be resolved through less formal means than a guardianship order. There are no medical treatment decisions that need to be made. Her son, VMS, can make any required decisions under the Medical Treatment Planning and Decisions Act 2016 (Vic).[61]
2. Ms Greenfield liaised with the speech pathologist at Doutta Galla to ensure VMS complied with recommendations about types of food allowed to accommodate ICV's dysphagia.
3. The report noted VMS seeks the guardianship order be revoked. Ms Greenfield noted revoking the order and removing the involvement of the OPA would help preserve the existing relationship between ICV and her son.[62]
4. In Ms Greenfield's consideration of the Charter and ICV's human rights, she noted that as her situation is stable and she has a range of supports in place, continuation of the order will not promote ICV's personal and social wellbeing and:

Continuing the guardianship order in the absence of demonstrable need would engage and limit [ICV]'s rights to privacy and equality before the law. For the reasons outlined above, I do not think this limitation would be justifiable or compatible with the Charter.[63]

1. With respect to the current limited guardianship order, the report concludes that:

It is my view that [ICV] has no continuing need for a guardian and that continuing the order, or making a further guardianship order, would not promote [ICV]'s personal and social wellbeing or be compatible with her human rights.

I therefore respectfully recommend that the guardianship order be revoked.[64]

Earlier medical and OPA reports from the VCAT file

1. The original application to the Tribunal by Nicole El-Hage, social worker at the Royal Melbourne Hospital, dated 15 January 2018 refers to ICV's disability as 'dementia' and that she has requested a report from Dr Genardini.[65]
2. The report by Michelle Lin and Chris Jellis, both physiotherapists, dated 3 March 2019 refers to ICV as non ambulant, and requiring two staff members for assistance for transfers via a sling hoist from bed to wheelchair or toilet commode. It also states she requires a slide sheet for positional adjustment in bed mobility and, when in bed, she requires crash and sensor mats as falls prevention measures. Her required pressure area care includes at least four positional changes every 24 hours given her non ambulant status and inability to initiate bed mobility independently. She is unable to stand. She requires two staff assistance to shower and toilet and assistance with personal grooming and her fine motor skills due to reduced dexterity.[66]
3. The report by Dr Jeffrey Erlich dated 25 January 2018 notes he has been ICV's GP for over 15 years, and he had last seen her on 3 October 2017. Dr Erlich states that, although he had not performed cognitive testing, he '...always found her to be capable of understanding her medical conditions, and risks and benefits of proposed investigations and treatments. Lack of insight into her medical care has never been an issue in our consultations.'[67]
4. Registered nurse Komala Kumar authored a 'clinical report' which was undated.[68] The report also notes ICV is non ambulant, requiring slings and slide sheets and is unable to stand. In terms of personal care, the report notes ICV requires full assistance for the whole process of personal hygiene, physical assistance dressing and full assistance with grooming. She requires two staff for dressing. Further, she requires two staff to operate the lifting machine for transfers from the bed to shower chair and one staff member for assistance showering. She is doubly incontinent and requires full assistance, namely staff to assist with all aspects of her personal hygiene.[69]
5. The application for temporary guardianship order by Jimmy Layley dated 18 March 2019 includes attachments such as his affidavit dated 7 March 2019 and seven exhibits. Exhibit JL-6 is an email dated 17 August 2018 from Sharon O'Neill, Facility Manager at Doutta Galla Lynch's Bridge, advising Mr Layley that ICV had completed a Psychogeriatric Assessment Scale with an Italian interpreter which indicated 'moderate cognitive decline.'[70]

1. ICV filed a witness statement dated 4 May 2025, together with medical reports referred to below and a newly executed enduring power of attorney.
2. The statement details the method of its preparation as follows:

[VMS] is fluent in the Italian language and is able to translate into written English what I want to say in this statement. Italian is my native language although I understand and speak some English. Prior to signing this statement it was read over and translated by [VMS] into the Italian language to me and consequently I agreed to sign it.[71]

1. ICV referred to her MRI and CT brain scans from 2017 and 2024 which she states do not show any abnormalities.[72] Further, she states that she can sign a new power of attorney as she does not '...have any mental disability or cognitive impairment which affects me making a new POA and this has also been confirmed in the medical report of Doctor Skehan who is my GP at the facility and also a report of Professor Kwang.'[73]
2. ICV indicated she had insight into her care indicated by her GP's certificate and '...given that my brain has not changed to any major degree since then I retain in my belief that insight.'[74]
3. ICV's statement has eight attachments, including the following medical reports and scans.

The Royal Melbourne Hospital inpatient discharge summary dated 16 December 2024

1. This document states that ICV was admitted to hospital from 14 to 16 December 2024 with hyperkalaemia. The record, under past medical history, notes 'Cognitive impairment - Not formally diagnosed'.[75]
2. It is recorded in her social history that:

Transfer with hoist to sit out of bed / hoist transfer to shower chair.

Fully dependent on personal care - reported by Son she was getting bed baths last 1-2 weeks.

Incontinent of both / bowels & urine - uses incontinence pads

-but [ICV] tells me with translating help from Son that she can often tell when she needs to pass urine.[76]

1. Whilst in hospital on 13 November 2024 due to shingles ICV had an MRI to check for encephalitis due to 'worsening confusion and visual hallucinations.' The conclusion noted no evidence of intracranial infection.[77]

1. ICV also had a CT head scan, and the conclusion indicated 'no acute intracranial pathology.'[78]

1. The Circle of Willis (COW) CT angiogram scan concluded 'No acute infarct. No intracranial vessel occlusion.'[79]

1. Dr Skehan's report is on a standard form provided by the Tribunals' Guardianship List.
2. He ticked the 'yes' box in response to the question of whether ICV has a disability (neurological impairment, intellectual impairment, mental disorder, brain injury, physical disability or dementia). He recorded she had the disability for five years and it is progressive. With respect to current decision making capacity, to the question 'Does the person have decision-making capacity about one or more personal matters such as where they live, their medical treatment or services they require?' he ticked 'Yes' because she could 'understand and remember information relevant to making a decision and the effect of the decision' and 'retain that information to the extent necessary to make the decision.' However, Dr Skehan did not tick the boxes indicating that ICV could 'use or weight that information as part of their decision-making process' or 'use and communicate the information to make a decision and express their views and needs'.[80]
3. He recorded that ICV was:

Diagnosed with dementia on admission to Lynch's Bridge Aged Care Facility in June 2018.

Has capacity to allocate financial power of attorney.

Has impaired capacity to make lifestyle decisions.

Unable to manage finances.

Lacks insight in where she will live and supports/services she would need.

Condition assessed personally and with geriatrician's assessment.[81]

1. In answer to the question of whether the person has decision-making capacity about their financial and property affairs, Dr Skehan ticked 'No' and referred to the geriatrician's assessment.[82]
2. In response to the question of whether the person currently has the capacity to make an enduring power of attorney he ticked 'Yes', noting 'discussion' was the means by which he formed his opinion about such capacity.[83]
3. Dr Skehan also ticked 'Yes' indicating ICV has current capacity to appoint a medical treatment decision maker or support person.[84]

1. Professor Kwang Lim is a geriatrician and general physician who performed a comprehensive geriatric assessment as well as a capacity assessment with ICV.
2. In terms of medical problems, in addition to her physical impairments, he noted:

...Likely dementia. This was diagnosed when she was an inpatient at The Royal Melbourne Hospital where she was also reviewed by a neuropsychologist.[85]

In terms of her capacity to make lifestyle decisions, she voiced a firm view of wanting to be at home, however, had no insight in terms of her care needs. She felt that her son will be able to manage all her care. In terms of the requirement of two people to transfer, she felt that she would be able to engage nursing services on an as required basis by pressing her personal alarm. Her judgement and planning was certainly impaired.

...Short-term recall was mildly impaired.

In summary, [ICV] has limited capacity... She has an impaired capacity to make lifestyle decisions on her own, mainly due to her lack of insight in terms of her care needs... In terms of her capacity to manage at home, it would require a lot of planning and support services as she would need 2 people to transfer her and she would be mainly bed bound.[86]

1. VMS filed a witness statement dated 4 May 2025.
2. This statement details the trajectory of VMS's appeals against his criminal convictions and his disclosure to ICV of these appeals and his criminal convictions.

1. I had a discussion with ICV at the hearing and asked her some open-ended questions. She was responsive in that she gave an answer, but she had difficulties stating where she currently lived or for how long. She mentioned a couple of suburbs then stated, 'I'm in a place I don't like'.[87] She expressed her desire to return home to live with her son.
2. When I asked if she would need assistance, she indicated her son would assist her and he would help her to stand. She stated she wants to be in control and can ask him for help. She stated '[i]f I'm standing up I can [get] dressed on my own'.[88] She stated she sometimes has to wait one or two hours until someone comes to help her at Lynch's Bridge. She also expressed that she does not like it when other residents come into her room. She also expressed that sometimes they are not helping her properly. She was not able to articulate or describe who other than her son might be required to assist her should she return home.
3. I asked her if she knew what a guardian is and whether she had one and she stated 'no'. When an attempt was made to clarify whether she meant she didn't have one or that she didn't know what it was, her answer was 'I can only tell you I want to be independent, I don't want to be under them anymore, I want to be free to go home and do my own thing'.[89]
4. When I asked her what type of help she might need, such as help with meals, showering or getting about, she stated, 'If I'm standing up I can [get] dressed on my own. For cooking I guess my son cook (indistinct words) or I can cook myself a little bit if sitting down on a chair.'[90]
5. She stated she did not want to do a test, her memory is good, and that she had '...been to hospital to have another test done, and they told me that everything was okay, so I don't want to have another one'.[91]

1. Section 30(2)(a) of the GA Act provides a guardianship order can only be made if the Tribunal is satisfied that because of the person's disability they do not have decision-making capacity in relation to the personal matters that are the subject of the application.

1. 'Disability' is broadly defined in section 3 to include 'neurological impairment, intellectual impairment, mental disorder, brain injury, physical disability or dementia'.
2. The Royal Melbourne Hospital inpatient discharge summary refers to 'Cognitive impairment - Not formally diagnosed'.
3. Professor Kwang Lim refers to ICV's medical problems as including 'Likely dementia.'
4. Dr Michael Skehan states ICV has had a disability for five years which is progressive and 'Has impaired capacity to make lifestyle decisions... Lacks insight in where she will live and supports/services she would need.'
5. In oral submissions VMS referred to Dr Genardini's report having been removed from her records at the Royal Melbourne Hospital. As indicated for the above reasons I have elected not to rely on Dr Genardini or Dr Straw's reports in this decision.
6. VMS also submitted that he only sought to rely on 'parts' of Dr Skehan and Professor Kwang Lim's reports which support ICV having capacity to sign a new enduring power of attorney. The status of the 'new' enduring power of attorney is not for consideration in this decision which concerns the reassessment of the guardianship order.
7. VMS rejected Dr Skehan's reference in his report to ICV as having been 'diagnosed with dementia on admission to Lynch's Bridge Aged Care Facility in June 2018'. He also rejected Professor Kwang Lim's reference in his report to ICV having 'likely dementia.'
8. Whilst I am not considering Dr Genardini or Dr Straw's reports for the reasons given above, other medical practitioners have had regard to the diagnosis and repeated it in their reports. I am of the view that if Dr Skehan or Professor Kwang Lim found their examination of ICV to be inconsistent with or contrary to that diagnosis, they would have been mentioned this in their reports, particularly given Professor Kwang Lim is a geriatrician.
9. If VMS sought to rely only on parts of Dr Skehan's and Professor Kwang Lim's reports, they should have been called as witnesses to give evidence and be cross-examined. In her statement ICV at [22] she contends Dr Skehan '...wrongly believed that I had been diagnosed with dementia, he still concluded that I had decision making capacity in relation to personal matters.' This statement is contradictory to the excerpts from Dr Skehan's report detailed above that she has impaired capacity to make lifestyle decisions.
10. VMS also sought to rely on the fact that the MRI and CT scans did not reveal any physical neurological change since scans in 2017. I am not of the view this proves that ICV does not have a disability within the definition in section 3. VMS did not put before the Tribunal any expert medical evidence to support the claim that the results of the MRI and CT scans demonstrated ICV does not have a disability.
11. Professor Kwang Lim's opinion and findings regarding ICV's impaired capacity and lack of insight is consistent with the diagnosis of 'likely dementia'.
12. Whilst ICV could engage at a superficial level when I spoke with her, she showed very little understanding of the extent of her physical impairments and how that might affect her ability to live at home. She demonstrated no insight into her current condition, although she could clearly express her dislike for her present accommodation and her strong desire to return home to live with her son. Her answers were a contrast to the contents of her statement dated 4 May 2025.
13. I am comfortably satisfied on the evidence from the doctors' reports and material referred to above and from my conversation with her that ICV has a disability within the meaning of section 3, namely a neurological impairment, which is most likely dementia.

1. Section 32(2)(a)(i) of the GA Act provides that the Tribunal must be satisfied that because of the proposed represented person's disability, the person does not have decision-making capacity in relation to '...the personal matter in relation to which the order is sought'.
2. Section 5 contains the factors for evaluating decision-making capacity under the Act. Summarised, a person has decision making capacity if able to understand information relevant to the decision and the effect of the decision, retain the information to the extent necessary to make the decision, use or weigh that information as part of the process of making the decision and communicate the decision.
3. In PBU v Mental Health Tribunal[92] Bell J stated (in the context of capacity to give informed consent to treatment) '...the threshold of capacity ... is relatively low. It requires the person to have an understanding of and an ability to remember and use or weigh relative information and communicate a decision'.[93]
4. In my view the evidence supports a finding that ICV does not have decision-making capacity in respect to the personal matter, namely her accommodation. In respect of her conversation with me she expressed her desire to go home but had little appreciation or understanding of her physical impairments or the support she would require at home. It was not apparent she was able to use or weigh information about her physical care needs and how they might be met.
5. Dr Skehan, ICV's GP stated this in his report, noting she had impaired capacity in relation to lifestyle decisions and '[l]acks insight into where she will live and support/services she would need.'[94] Professor Kwang Lim was of the same conclusion and stated 'her judgment and planning [were] certainly impaired' and she has impaired ability to make lifestyle decisions mainly because of her lack of insight in terms of her capacity to manage at home.[95]
6. The reports from the physiotherapists Ms Lin and Mr Jellis, and Nurse Kumar, detail the physical assistance needed to support ICV. Her expectation, expressed to me, that If I'm standing up I can [get] dressed on my own, or get up and walk slowly, is at odds with the reality of her current physical situation. She is non ambulant, and it has been years since she has stood. She is doubly incontinent. None of this medical evidence was in dispute. The Royal Melbourne Hospital discharge summary shows as recently as December 2024 her physical care needs have not diminished.
7. ICV was certainly able to clarify her wishes to go home but I am satisfied she was not able to understand information relevant to the decision about going home, nor could she retain or weigh information as part of the decision-making process.
8. I rely on the medical evidence which refers to ICV lacking insight and having impaired capacity. I note the assessment by Professor Kwang Lim occurred with the assistance of an Italian interpreter, so I am satisfied cultural, or linguistic considerations did not negatively impact his assessment. ICV clearly wants to go home, and I accept she only needs to show a general understanding of the information, but she appeared not to comprehend her immense physical limitations. This was clear from what she said at the hearing. She does not have decision-making capacity precisely in relation to the personal matters for which the guardianship order was sought, as it related to her accommodation. Her medical decisions and access to services are not relevant as there are no pressing medical decisions to be made and her access to services is met through her residence at Lynch's Bridge and the services provided to her there.

1. Section 30(2)(b) of the GA Act provides the Tribunal can only make a guardianship order if the represented person is in need of a guardian.
2. As noted above, section 8 requires the Tribunal to apply the principles contained therein, including that the person's will and preferences should direct the decision 'as far as practicable'. This is relevant when assessing whether a person needs a guardian and who is suitable to be appointed.
3. VMS has submitted there is no need for a guardian as there is no disability or lack of decision-making capacity.
4. The OPA has submitted there is no need for a guardian due to the stability of ICV's current circumstances.
5. Section 31 sets out the factors to consider in determining whether a person is in need of a guardian.
6. Section 31(a) provides the Tribunal must consider the will and preferences of the proposed represented person. At the hearing ICV expressed her clear desire to go home to live with her son. She was not able to explain what a guardian was or did, however I understood her as not wanting a guardian.
7. Section 31(b) provides the Tribunal must consider whether decisions in relation to the personal matter for which the order is sought may be made by more informal means or reasonably made through negotiation, mediation or similar.
8. In this case the OPA is satisfied the decisions can be made less formally than by requiring a guardian. The report noted ICV has been living at Lynch's Bridge where she can remain indefinitely. No accommodation decisions have been made during the current order. There is no current need for decisions as to where she lives as Lynch's Bridge is continuing to provide the service despite a substantial debt owing.[96] No service decisions have been made and with all the supports that are in place, any future decisions regarding services can be resolved by less formal means than through a guardian.
9. There are no outstanding medical decisions to be made, and any future ones can be made by VMS under section 55 of the Medical Treatment Planning and Decisions Act 2016 (Vic) as her medical treatment decision maker.
10. Section 31(c) requires the Tribunal to consider the wishes of a primary carer or relative of the proposed represented person or other person with a direct interest in the application and section 31(d) requires the Tribunal to consider the desirability of preserving existing relationships that are important to the proposed represented person. Both ICV and VMS seek the guardianship order be revoked and the OPA report notes removing the involvement of the OPA would help preserve the existing relationship between them.
11. The OPA submitted in consideration of ICV's Charter rights, and the lack of necessity for a guardianship order, any such order would engage and limit her rights to privacy and equality before the law which would not be justifiable or compatible with the Charter.
12. The OPA submitted the guardianship order should be revoked as ICV has no continuing need for a guardian and making a further guardianship order would not promote her personal or social wellbeing or be compatible with her human rights.
13. I am not satisfied that in these circumstances a guardian is needed, as the case requires. ICV is very comfortable living at Lynch's Bridge, despite her protests. Her physical needs are cared for in every way. Whilst she remains at Lynch's Bridge, I accept the OPA report and recommendation, and I am not satisfied ICV is in need of a guardian as required by section 30(2)(b).

Section 30(2)(c) the guardianship order will promote the proposed represented person's personal and social wellbeing.

1. Given I am not satisfied there is a need for a guardian, it is not necessary to consider section 30(2)(c).
2. The guardianship order is revoked.

[1] Names are anonymised to protect the represented person's identity and personal information, noting in proceedings in the Supreme Court, different anonymisers have been used.

[2] LG v Melbourne Health [2019] VSC 183 (LG v Melbourne Health).

[3] At a hearing on 27 March 2019, the parties agreed to an extension of the temporary guardianship order to 1 May 2019 subject to the hearing and determination of VMS's application for summary dismissal.

[4] Supplementing oral reasons given at hearing, Judge Jenkins gave written reasons on 17 April 2019 - ICV (Guardianship) [2019] VCAT 559.

[5] Briginshaw v Briginshaw (1938) HCA 34. For the applicability of the Briginshaw standard of proof in guardianship and administration applications see the Western Australian case of LP [2020] WASAT 25 [99] - [110], and in the context of assessment of a person's capacity to consent or not consent to medical treatment in NJE v Mental Health Tribunal (Human Rights) [2017] VCAT 1070.

[6] Supplementing oral reasons given at hearing, Judge Jenkins gave written reasons on 17 April 2019 - ICV (Guardianship) [2019] VCAT 559.

[7] VCAT Order Senior Member Steele 26 September 2019.

[8] LG & Anor v The Public Advocate [2019] VSC 514.

[9] LG v The Public Advocate [2020] VSCA 65.

[10] LG & Anor v The Public Advocate [2020] HCASL 184.

[11] LG (a pseudonym) & Anor v The Public Advocate [2021] VSC 583.

[12] One appeal related to VMS's criminal conviction of 63 charges of theft in the County Court, the other relates to his conviction for breach of s 11(1) of the Legal Profession Uniform Law.

[13] The original administration order made by the Tribunal on 16 April 2018 was set aside by Justice Richard's decision in LG v Melbourne Health.

[14] The OPA's 9 July email refers to the 16 April 2018 order of Member Smith, stating that it has never been revoked. This would appear to be an inadvertent error on the OPA's behalf as this order was overturned on appeal in LG v Melbourne Health. I presume the intention was to refer to Judge Jenkins' 12 April 2019 order.

[15] The OPA's application for administrator was adjourned on 29 April 2025 at the request of the OPA and Doutta Galla (opposed by VMS) to a date to be fixed pending Justice Gray's decision on VMS's appeal against SM Nihill's order granting the application for Doutta Galla to be joined as a party. As a result, this decision does not include references to the OPA's application for an administrator.

[16] Guardianship and Administration Act 2019 (Vic) s 162(c).

[17] Statement of [ICV] dated 4 May 2024 [1] (Statement of ICV).

[18] Office of Public Advocate report of the guardian to the Victorian Civil and Administrative Tribunal dated 30 April 2025 [3.1.1], 2-3 (OPA Report).

[21] Submissions of [ICV] and [VMS] in relation to reassessment of guardianship order and other matters dated 4 May 2025 [13] ('ICV and VMS's submissions').

[32] Submissions on behalf of Doutta Galla Aged Services Ltd dated 1 May 2025 [4] (Doutta Galla's submissions).

[33] As primary carer of the represented person Doutta Galla was entitled to notice of the reassessment under section 162(e) of the GA Act. Its status as a party in the OPA application for an administration order is currently on appeal.

[35] (Guardianship) [2024] VCAT 748.

[36] (Guardianship) [2018] VCAT 1588 ('THD').

[38] (Guardianship) [2023] VCAT 1234 ('MJG').

[41] Report of Dr Natalie Genardini dated 18 January 2018, 3.

[44] ICV (Guardianship) [2019] VCAT 559 (ICV [2019]) [14] - [15].

[47] Exhibit JL-4 to Affidavit of Jimmy Layley dated 7 March 2019, Memorandum to VCAT dated 23 July 2018 [1]-[6].

[48] Affidavit of Jimmy Layley dated 7 March 2019 [19]-[21].

[49] Affidavit of Jimmy Layley dated 7 March 2019 [23], [25].

[50] Affidavit of Jimmy Layley dated 7 March 2019 [24].

[51] Order in proceeding S ECI 2019 00392 dated 19 February 2019, Other Matters 'D'.

[52] Affidavit of Jimmy Layley dated 7 March 2019, [10] - [11].

[54] Orders and Directions of the Tribunal dated 13 January 2021, 2.

[55] As listed at [9] of ICV [2019], these were: the initial application for appointment of an administrator and/or guardian by Nicole El-Hage, Social Worker dated 15 January 2018, report of her general practitioner Dr Jeffrey Erlich dated 25 January 2018, the medical assessment made by Dr Sarah Straw dated 15 January 2018, the neuropsychological assessment made by Dr Natalie Genardini dated 18 January 2018, statement of Jimmy Layley, as representative of the Public Advocate dated 18 March 2019, report of Michelle Lin, Physiotherapist and Chris Jellis, Senior Physiotherapist of Doutta Galla Lynch's Bridge aged care facility dated 3 March 2019, report of Komala Manoj Kumar, Registered Nurse of Doutta Galla Lynch's Bridge aged care facility dated 7 March 2019.

[56] ICV [2019], 'Application for guardianship (s 19 Guardianship and Administration Act 1986)', Order 2.

[60] This alleged debt is disputed by ICV and VMS, see Statement of VMS dated 4 May 2025, [20].

[65] Application to VCAT dated 15 January 2018, 2.

[66] Report of Michelle Lin and Chris Jellis dated 3 March 2019.

[67] Report of Dr Jeffrey Erlich dated 25 January 2018.

[68] Affidavit of Jimmy Layley dated 7 March 2019 Exhibit JL 8 notes it is dated 6 March 2019.

[69] Report of Komala Kumar (undated), 1.

[70] Exhibit JL-6 to Affidavit of Jimmy Layley dated 7 March 2019 - Email from Ms O'Neill to Jimmy Layley dated 17 August 2018.

[80] Medical Report of Dr Skehan dated 1 July 2023, 3.

[81] Medical Report of Dr Skehan dated 1 July 2023, 3.

[82] Medical Report of Dr Skehan dated 1 July 2023, 4.

[83] Medical Report of Dr Skehan dated 1 July 2023, 6.

[84] Medical Report of Dr Skehan dated 1 July 2023, 7.

[85] Medical Report of Professor Kwang Lim dated 17 September 2022, 1.

[86] Medical Report of Professor Kwang Lim dated 17 September 2022, 2.

[92] [2018] VSC 564 (PBU).

[93] PBU [235]. Justice Bell's guidance on assessing capacity was adopted by VCAT, in the context of a guardianship proceeding, in ALG (Guardianship) [2023] VCAT 344.

[94] Medical Report of Dr Skehan dated 1 July 2023, 3.

[95] Medical Report of Professor Kwang Lim dated 17 September 2022, 2.

[96] As previously noted, I understand this debt is disputed by ICV and VMS.