1. On 3 April 2025, NZQ lodged an application with VCAT requesting orders to revoke, vary or suspend a power of attorney. NZQ is related to the principal, TUN. VVJ is a close friend of TUN and has been TUN's primary carer for the last few years.
2. The principal, TUN had appointed VVJ her attorney for financial matters, medical treatment decision maker and guardianship (collectively the instruments) on 7 May 2021. The powers of attorney state that they commence on the principal being declared incapable and a medical certificate being produced to that effect.
3. In the application NZQ claimed that the principal was of Greek background and had limited understanding of English. It was claimed that the principal signed documents that were not explained to her and she did not understand their legal effect. No independent Greek interpreter attended to explain the nature of the documents. NZQ stated that the principal was taken to hospital where cognitive tests were conducted. NZQ requested that VCAT investigate the circumstances surrounding the creation of the instruments and the actions of the attorney since that time. At the hearing he asked that VCAT ask the Public Advocate ('OPA') to investigate the matter. The application asked VCAT to appoint an administrator or make any other order VCAT deem appropriate.
4. A hearing was held on 18 November 2025, attended by the applicant NZQ, the attorney VVJ, and Dean Kalimniou, lawyer for VVJ and drafter of the instruments signed by TUN on 7 May 2021.
5. At the hearing I decided to dismiss the application and provided oral reasons for my decision.
6. On 25 November 2025 NZQ requested reasons for my decision.
7. The following are the Tribunal's written reasons, which explain and clarify the oral reasons to the extent necessary.

1. VCAT has been provided with a series of documents to assist in making its decision. This includes:
   • The appointment of financial attorney dated 7 May 2021
   • The appointment of guardian dated 7 May 2021
   • The appointment of medical treatment decision maker dated 7 May 2021
   • An application for the appointment of a guardian made by Helen Vlahos, social worker at the Caulfield Hospital dated 13 December 2023
   • Medical report dated 13 December 2023 from Dr Brenton Tay, Geriatrician at Caulfield Hospital
   • OPA report dated 14 December 2023
   • Withdrawal request dated 18 December 2023
   • Medical Inpatient Note from Dr Hye-Sang Shin, consultant psychiatrist, dated 26 February 2025 from Caulfield Hospital
   • Discharge Summary dated 12 March 2025 from Caulfield Hospital
   • Information from Dr Mohammed Ismail regarding her decision-making capacity in May 2021.

1. NZQ stated that he had communicated with his relative TUN who was not happy to be residing in Alexander House, an aged care facility, since 17 March 2025. NZQ stated that TUN had told him she did not know about the documents she had signed and that she did not want them to be used to keep her in the aged care facility.
2. NZQ stated he and his family were being denied the opportunity to personally visit TUN by decisions of the attorney. He stated that TUN was currently stable in her mental state but had some memory issues.
3. NZQ stated he did not believe that TUN understood the instruments that were created 7 May 2021 because they were in English and she was not fluent in that language.
4. NZQ questioned the report of Dr Tay on the decision-making capacity of TUN. He stated that this report was not created by a Greek speaker, and he had a copy of a report that stated that there were specific nuances relevant to be considered when making an assessment of a Greek speaking individual that a Greek speaking geriatrician would be able to compete.

1. Mr Kalimniou stated he had been the lawyer who had assisted in the creation of the instruments in May 2021. He stated that he is a fluent Greek speaker and had spoken Greek to TUN when explaining the documents. He had completed a university course specifically addressing the issue of assessing capacity in medico/legal matters and believed himself adequately qualified to assess whether a person had decision-making capacity when completing documents such as those completed by TUN.
2. Mr Kalimniou advised that at the time he created the instruments he was in contact with Dr Mohammed Ismail, a GP who had provided care to TUN for a significant period of time. Dr Ismail stated that TUN had decision-making capacity in May 2021 and would attest to this in writing.
3. Mr Kalimniou stated that it was his professional opinion that TUN had decision-making capacity when the instruments were executed and understood what she was doing at the time.
4. Mr Kalimniou stated that VVJ had been assisting TUN single handedly for a significant period of time but had only used her authority as attorney since February 2025. She had attempted to support her to live independently and this had only ended in March 2025.
5. TUN's home had recently been sold and TUN had not been told about this on advice that it would cause her significant agitation.
6. VVJ was conducting her role as attorney diligently, including keeping records of her action as attorney as required.
7. VVJ was happy for NZQ and his family to visit TUN as long as they did not act to agitate her in her present accommodation.

1. On 13 December 2023 an urgent application was made by Caulfield Hospital for the appointment of the Guardian. The reason for the application was that TUN had returned home from hospital after initially agreeing to services, but declined everything when she got home, including refusing entry to the visiting clinician. She had recently had a fractured leg after a fall at home. She was at risk of further falls and unable to attend to daily activities.
2. Dr Tay's report stated he assessed TUN with the assistance of a Greek interpreter. TUN had been brought to the hospital on 2 December 2023 by VVJ for further assessment as VVJ was concerned about TUN being unable to manage at home. She presented with a history of cognitive and functional decline over the last three to six months. He stated that there was a likely diagnosis of dementia, and her only friend VVJ reported disorientation, confusion, agitation, paranoia, aggression and illogical thoughts. Neurological assessment was done on 5 December 2023 and 7 December 2023. It was concluded that she lacked capacity to discharge against medical advice. TUN was discharged home on 12 December 2023 as a least restrictive discharge plan as TUN had agreed to home services. She was readmitted to hospital on 13 December 2023.
3. Dr Tay stated that there was clear evidence of cognitive and functional decline. Dr Tay determined she did not have decision-making capacity for financial or personal decisions. Dr Tay noted that there was an appointment of financial attorney but that a guardian was required.
4. OPA provided a report to VCAT on 14 December 2023. This relevantly stated that TUN reportedly does not have any close family members or friends other than her friend VVJ and VVJ's husband. In October 2023 a fall resulted in a fractured right knee. VVJ assisted TUN to be admitted to Box Hill Hospital and then into a Transitional Care Program. In late November 2023 TUN discharged herself against medical advice and returned home. Five days after returning home TUN was unable to resume her daily activities and VVJ brought her to the Alfred Hospital for further assessment. The report stated that Dr Tay opined that TUN did not have decision-making capacity concerning her personal matters.
5. The Medical Inpatient Note dated 26 February 2025 from Caulfield Hospital specifically states that it was prepared to support the enduring power of attorney enactment to support the social work team and VVJ in finding and consenting to residing in a residential aged care facility. The consultant psychiatrist stated that the letter is to confirm my opinion that TUN does not have capacity with regards to her medical, financial, accommodation/lifestyle support decision making.
6. The Discharge Summary from Caulfield Hospital stated TUN was an 86 year old Greek speaking woman living alone with dementia and increasing Behavioural and Psychological Symptoms of Dementia. Admission 18/02/2025, Discharge 17/03/25. TUN has become increasingly paranoid and has been aggressive and verbally abusive to POA/main carer VVJ. AN Involuntary Temporary Treatment Order was instated in the Emergency Department in the setting of refusing voluntary treatment.

Consideration of the information and findings

1. I noted that the evidence regarding the creation of the instruments was compelling. I accepted that Mr Kalimniou advised TUN about the documents in Greek, it being reasonable to assume that with her limited understanding of English and Mr Kalimniou's fluency in Greek that the conversation would be held in Greek. An interpreter would not have been required at the meeting.
2. I noted the medical evidence at the time of the execution of the instruments was that TUN had decision-making capacity. TUN's long-standing doctor would attest to this, and I accepted that Mr Kalimniou had conducted his own assessment regarding the decision-making capacity of TUN when executing the instruments.
3. The information before me demonstrated that VVJ, was TUN's closest friend and carer. She had provided daily support to assist TUN remain in her home as long as she could, in circumstances TUN's illness was causing aberrant behaviour and outbursts. The December 2023 and March 2025 reports both identify dementia related symptoms of paranoia, abuse and aggression.
4. With respect to NZQ's request that an investigation be conducted into the creation of the instruments in May 2021, I stated that this would likely be futile, as the evidence available at the time of creation was strongly supportive of the position that TUN had decision-making capacity at this time, taking into account the presumption of capacity and the medical and legal evidence as provided to support this assessment. No medical assessment in November 2025 would suffice to supplant this position. No expert would be able to authoritatively conclude that TUN did not have decision-making capacity at the time the instruments were created.
5. That the documents are completed in English does not mean that TUN was unaware of what she was executing. I accept the evidence of Mr Kalimniou that he explained the documents to TUN in Greek and therefore understood what she was doing.
6. It is also reasonable that TUN would choose to appoint VVJ into these roles at the time the instruments were created. VVJ has been consistently described as TUN's closest friend and support, and had a history of providing assistance to TUN. In these circumstances the appointment of VVJ as attorney by TUN is understandable and reasonable in the circumstances
7. Evidence from TUN herself would also be of limited utility given the current assessment regarding her cognition, memory defects and effect of the dementia on her decision making in November 2025. I note that TUN's concerns about the decision to move her from her home into the residential aged care facility, made on medical advice and after attempts to support her in the home environment had failed, is the likely basis for TUN's current representation to NZQ which has led to this application. I accept that TUN's present disquiet as to her residence is an aspect of the symptoms of disorientation, confusion, agitation, paranoia, aggression and illogical thoughts as presenting as part of TUN's dementia diagnosis.
8. On the information presented to me, I am comfortably satisfied that the instruments appointing VVJ as TUN's attorney and substitute decision maker were made with the understanding and approval of TUN in May 2021.
9. I consider that the first formal assessment that TUN's decision making was affected was in December 2023. I note Dr Tay's assessment and the first formal diagnosis of dementia. I do not accept NZQ's proposition that a Greek speaking geriatrician was required to assist in the assessment of TUN's decision-making capacity, as Dr Tay is qualified in this area and had used a Greek speaking interpreter to assist in the assessment.
10. I further consider that given the specific clauses of the instruments, the powers provided did not formally become effective until February 2025, when it was stated in writing by a consultant psychiatrist that TUN did not have decision-making capacity. This meant that the capacity clause in the instruments, which required a medical assessment to be completed for the power to be functional, was properly followed.
11. Given the formal determination in February 2025, the attorney was entitled to use the powers provided to her in the instruments to make decisions for the principal TUN.
12. I have no information before me to state that the attorney was not meeting her duties as the attorney, as TUN had directed when creating the instruments.
13. Given the futility in investigating the creation of the instruments, that I was not satisfied that there was any reason for me to revoke, vary or suspend the instruments, and that the instruments were satisfactory for the purpose of supporting the principal, TUN, I determined to dismiss the application.