ZLZ (Guardianship) [2025] VCAT 639

1. The following people are appointed joint guardians for ZLZ:

1. The guardians have power to make decisions about these personal matters:
   • - where ZLZ lives
2. Guardians must comply with the Guardianship and Administration Act 2019, which outlines their powers and duties.

VCAT makes this order because it is satisfied that:

• - due to a disability, ZLZ does not have capacity to make decisions about the personal matters listed in this order,
• - ZLZ needs a guardian, considering the factors set out in section 31 of the Act, including their will and preference (what's important to them), and
• - this guardianship order will promote the personal and social well being of ZLZ.

1. This order applies until VCAT makes another order.
2. Anyone can apply for VCAT to reassess this order at any time.
3. VCAT will reassess this order no later than 30 June 2026.
4. VCAT will automatically schedule a hearing and notify the parties and interested persons when the reassessment hearing can be scheduled. Unless VCAT makes a new order that cancels (revokes) this order, this order does not expire, even if a reassessment does not take place until after the above date.

1. If any of the guardians or ZLZ changes contact details (email, phone or address), one of the guardians must immediately inform VCAT in writing.

Noel Finch - applicant, hospital social worker, Benalla Health

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 (Vic) 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 (Vic) that identifies or could lead to the identification of a party to the proceeding.**

1. In these written reasons for decision, I refer to the person who is the subject of the application as ZLZ. The Victorian Civil and Administrative Tribunal (VCAT) has given the person that anonymised name to protect their identity and the confidentiality of their personal information.
2. By way of application dated 14 January 2025, Noel Finch applied for a guardian to be appointed for ZLZ. In his application he raised concerns regarding the ability of ZLZ to make decisions regarding her safe discharge from hospital. At the time of the hearing, ZLZ was admitted to hospital and there were significant concerns regarding the safety of her home environment, which was located on a 700-acre working farm.
3. ZLZ had been admitted to hospital on 16 December 2024 and discharged on 28 January 2025 and then readmitted on 12 March 2025. She had been in hospital since that time.
4. I was provided with a copy of an enduring medical power of attorney dated 23 December 2008 which appointed AFE and TLJ to make medical decisions. I was told that there was also a financial enduring power of attorney appointing AFE and TLJ as decision makers. I was not provided with a copy of the financial enduring power of attorney. There was no enduring power of attorney for personal decisions which would allow an attorney to make decisions about where ZLZ lived.
5. There was a hearing on 21 May 2025 where I was the presiding member. I made orders at the end of the hearing and gave oral reasons for my decision. JMR has asked for written reasons, and I set out below a written version of the reasons I gave at the hearing.
6. I appointed AFE and TLJ as guardians for ZLZ with power to make decisions for ZLZ about where she lives.

1. The hearing was first scheduled to take place on 23 April 2025. The hearing commenced but was adjourned at the request of JMR as he had only recently been made aware of the application, and he sought an opportunity to obtain legal advice and a further medical report. The order made on that day states that appointments (presumably for medical assessment) had been made.
2. At the commencement of the hearing on 21 May 2025, JMR was not present. He had provided written submissions by email. I inquired whether all the relevant people were in attendance, and I asked ZLZ directly. She indicated that the relevant people were present, being just the family.
3. I made introductory comments explaining the hearing and the application, commenced speaking with ZLZ, and heard some evidence from her and Noel Finch. I made it clear that I was reluctant to make a decision without JMR present as ZLZ clearly stated that she wanted all her children involved.
4. I enquired as to the contact details of JMR, and was told by his siblings that they did not have his contact number. I allowed Noel Finch to leave the hearing to locate a phone number for JMR. At the same time JMR dialled into the hearing by telephone. The recording of the hearing indicates that he attended the hearing 12 minutes and 54 seconds after the start of the hearing.
5. JMR requested that the hearing be adjourned, on the grounds that ZLZ would be denied procedural fairness, and also that the application should be dismissed or struck out as it was false and misleading. Alternatively, he argued that the application should be amended to add him as an interested party. It was unclear to me why JMR had not been included as an interested party, and I was not provided with an explanation as to why he had not been added.
6. JMR's submissions during the hearing were lengthy, and in the interests of time and ensuring that all parties had an opportunity to speak it was necessary that I direct his submissions to the relevant issues.
7. In addition to his submissions that the application was false and misleading, I understood JMR to argue that his mother had been denied procedural fairness as she had been prevented from obtaining legal advice. JMR stated that ZLZ's longstanding solicitor wanted to visit ZLZ at home after her discharge from hospital, to seek instructions from her and to represent her at the hearing. ZLZ sought an adjournment to allow this to occur. The applicant told me that a solicitor had visited ZLZ in hospital two weeks prior to the hearing, but he was unaware of the outcome of that visit.
8. I refused the application for an adjournment. I was satisfied that ZLZ and JMR had sufficient time to prepare for the hearing. I took into account that ZLZ's cognitive impairment would possibly impede her ability to seek representation or speak up at the hearing to request additional time to prepare. ZLZ's right to seek legal representation is important, but I was not persuaded that she was seeking or wanting representation. I also took into account that the hearing had already been adjourned for JMR to obtain legal advice, and that a further delay would be unreasonable, given that I was not provided any specific information about what had been done to obtain representation or advice.
9. I did not accept the submissions of JMR that to proceed with the hearing would deny ZLZ procedural fairness. ZLZ was aware that the hearing was taking place, was fully able to participate and respond to questions, and was aware that a guardian was being sought to make decisions about where she lived. In short, ZLZ appeared aware that she was unable to be discharged from hospital due to concerns about her return to her home. With the assistance of all present, ZLZ was able to make her views regarding the application known. I formed the view that an adjournment would not assist ZLZ to prepare or represent herself at the hearing, and that a further adjournment would unreasonably delay the resolution of the application and her discharge from hospital.
10. I also took into account that the application had already been adjourned once before at the request of JMR to allow him to seek a copy of the application and legal advice.
11. Additionally, I had not received any request for an adjournment from the solicitor that JMR stated sought to obtain instructions from ZLZ. It is reasonable to expect that a solicitor would be aware of the procedures of the Tribunal, and that a solicitor would know how to obtain details of the hearing and request an adjournment if it were appropriate to do so. No such contact had been made.
12. I was not satisfied that the application should be struck out or dismissed on the grounds that it was false and misleading. JMR had been omitted from the initial application as an interested party. The reasons for this were unclear. I am not satisfied that this is a sufficient reason to strike out or dismiss the application in part or in whole. JMR had become aware of the application and was able to attend the hearing and make submissions as to the appointment of a guardian. The request to add JMR as an interested party did not necessitate the amending of the application, or an adjournment to allow this to occur.

1. A person (including VCAT) exercising powers, functions and duties under the Guardianship and Administration Act 2019 (Vic) (the Act) must have regard to the principles set out in section 8 of the Act. In summary, they are:
   1. a person with a disability should be given practicable and appropriate support to make and participate in decisions, express their will and preferences and develop their decision-making capacity;
   2. the will and preferences of a person with a disability should direct decisions made for the person, as far as practicable; and
   3. powers, functions and duties must be used in the way which is the least restrictive of the ability of the person with a disability to decide and act as is possible in the circumstances
2. Section 9 of the Act sets out further principles which apply to a person making a decision "for" a represented person. These apply to a guardian, administrator, supportive guardian or supportive administrator who is making a decision for a represented person. They would also apply to VCAT when it is advising an appointed decision-maker about their powers and duties.

1. Section 30(2)(a) of the Act says VCAT may only appoint a guardian for a person if satisfied that because of the person's disability, the person does not have decision-making capacity in relation to the personal matters which are the subject of the application.
2. I received medical evidence which was submitted in advance of the hearing by the applicant. The medical evidence supported the opinion that ZLZ had been diagnosed with vascular dementia which impacted her decision-making capacity regarding the decision of where she lived.
3. A letter was provided from geriatrician Dr Nick Sharrock dated 8 February 2025. Dr Sharrock stated that he had attended at ZLZ's home on 8 February 2025 and he had attempted to complete a cognitive assessment, which ZLZ refused. She was described as combative and irritated, and dismissed concerns regarding her ability to live at home. Dr Sharrock states in his report 'Given the lack of insight, her poor memory and lack of comparative reasoning, I think that it is very clear that ZLZ does not have decision making capacity with regards to lifestyle decisions.'
4. Although ZLZ was not agreeable to completing a formal assessment, Dr Sharrock formed the view that a diagnosis of vascular dementia stemming from poorly controlled diabetes was appropriate. He made the following observation:

I am of little doubt though that ZLZ has vascular dementia and that this results in her being incapable of making lifestyle decisions given her lack of insight, lack of retention of information and lack of comparative reasoning.

1. Dr Sharrock describes ZLZ as living alone on a 700-acre farm for 20 years after the death of her husband. He states that she receives extensive support, some of which is privately funded. In relation to ZLZ's living arrangements Dr Sharrock states the following:

Given ZLZ's demeanour during the conversation and she is clearly adamant about remaining living at home, I think admission and care in a residential aged care facility may be practically difficult. Really, in a way, both decisions seem inappropriate; remaining living at home with a very significant carer burden or moving into aged care. I would personally say that the most appropriate place for her to live would be a residential aged care facility.

1. I also received a report completed on VCAT's medical report template from ZLZ's general practitioner Dr Gary O'Brien, who states he has known ZLZ for 19 years. In his report, Dr O'Brien states that ZLZ has experienced a four year cognitive decline, with a 'CVA' (stroke) in February 2024 contributing to a further decline. He observes that ZLZ usually refuses to co-operate with formal assessments, which are halted halfway through. Dr O'Brien notes that ZLZ's compliance with medication and insulin administration is poor, and that her capacity to make decisions regarding personal and financial matters is impaired.
2. I was provided with a letter from Elise Cook dated 5 May 2025 who is a podiatrist. She states that she has cared for ZLZ since 2020, and that ZLZ has attended the foot clinic since 2015. Ms Cook states that ZLZ has experienced Charcot Neuroarthropathy to her right foot, which requires ongoing care from the high-risk foot care clinic. She states that she has observed a cognitive decline since January 2022, and a decline in ZLZ's ability to care for her foot. She states that since September 2024 her foot care has been excellent and closely monitored by AFE.
3. Based on the medical reports, I am satisfied that ZLZ now lacks the capacity to make decisions about where she lives. I note that there was no dispute raised by any participant regarding ZLZ's impaired capacity to make decisions about where she lived.

1. At the hearing, I heard evidence from the following people: the represented person, ZLZ, the applicant and hospital social worker, Noel Finch, and ZLZ's children JMR, AFE, RKX and TLJ.
2. Noel Finch gave evidence that ZLZ was experiencing a progressive decline in her cognition and functioning, and that her treating team were concerned that she was unable to make decisions about where she resides.
3. There were no medical issues preventing her discharge from hospital. She required nursing care for medication administration, assistance with hygiene and meal preparation which involved the cutting of her meals into smaller pieces.
4. Noel Finch stated that he recommended that ZLZ's daughter AFE be appointed as guardian for ZLZ as she was the person who was providing care to ZLZ.
5. JMR provided evidence at the hearing and stated that ZLZ's occupational therapist and her general practitioner were happy to discharge ZLZ into his care. JMR was living in Queensland, but he was prepared to move to be with his mother.
6. JMR did not provide a specific response to the application for guardianship other than to say he wanted the application adjourned. However, my best understanding was that JMR was not disputing that ZLZ lacked decision making capacity as to where she lived. JMR appeared to be of the view that ZLZ could safely be discharged to her home as that was her preference, and that he would be able to care for her.
7. JMR spoke of his sister AFE having isolated their mother from a person she formed a relationship with after the death of their father, saying that she had 'found love a second time.' He also stated that he had been obstructed from obtaining medical information regarding his mother, and that he had not been contacted after her admissions to hospital which denied her the comfort of speaking with him.
8. AFE spoke at the hearing, and described her mother as being passionate about living on the farm. She stated that she first went there as an 18-year-old bride and had lived there for over 60 years. She had continued to live at the farm following the death of her husband over 20 years ago. AFE described her mother as resilient and independent.
9. AFE described her mother as always being adamant that she would live on her farm, it being where she belonged. She described her father as structuring his estate to allow ZLZ to remain living at the farm, and that her children had always supported her to be able to do so despite her declining health.
10. AFE stated that none of ZLZ's children live close by, that RKX lived in Scotland, JMR in Queensland, TLJ was in Albury/Wodonga, and she was approximately two and half hours away.
11. AFE spoke of ZLZ's stroke in February 2024, and how this led to a more significant decline. ZLZ was admitted to hospital for five weeks, and at this time the medical team recommended ZLZ enter residential aged care. AFE stated that she knew that her mother would be unhappy in residential care, and that she supported her mother's return home. AFE took on care responsibilities and eventually took leave from her paid employment to care for her mother. AFE described the care she provided as rewarding and challenging.
12. The care arrangements which had been in place for ZLZ had consisted of AFE being present over four-day weekends. AFE would feed pets and attend to household chores. TLJ has his own farm which he manages, but he would attend the farm to work with the farm manager. Paid carers attended the home three times a day to assist with personal hygiene and meals, and to ensure that ZLZ was able to go out into the local community. Much of this care was privately funded, however the local care providers were small and all at home care options had been exhausted.
13. AFE described the hazards on the farm as being a serious risk to the safety of ZLZ. She stated that the house was not a comfortable place for her to be as it was not fully equipped for her needs, and that her care needs now exceeded what was available in their community. She stated that the extra support needed was not available.
14. TLJ spoke and stated that he supported his sister, who he said had been fantastic. He described her as 'bossy' but being fantastic at what she did. He stated that many improvements had been made to his mother's home, but that it was still cold.
15. RKX spoke briefly and stated that he didn't have much to say, other than he supported what TLJ said. He said that AFE had given 100% to their mother's care and that he could not think of a better guardian for her.
16. I also received and took into account written submissions from JMR which had been emailed to the Tribunal. This document was titled 'Statement of wishes of future appointment of guardian'.
17. In his written submissions JMR stated that he wanted to be appointed as his mother's guardian. He stated that it was important that a guardian was a person with a close and personal relationship with his mother, and someone who she trusts. He wrote that the guardian needed to be a person who did not engage in coercive control, either directly or indirectly, and was someone who did not isolate his mother from relatives or friends. He stated that he was best placed to do those things.
18. He stated that his mother's prime wish was to return to her farm, and that he was the only person who was willing to respect those wishes. JMR states in his submissions that he lives in Queensland, but he is willing to live with his mother at the farm, and that allied health practitioners support this. He stated in his submissions that his mother had communicated with him that she wants him involved in her affairs, and to enact her will and preference.

1. When appointing a guardian, VCAT must apply the principles in section 8, including that ZLZ's will and preferences should direct the decision 'as far as practicable'.
2. ZLZ's will and preferences are relevant also when VCAT decides whether a person needs a guardian (section 31) and whether a proposed guardian is a suitable person to be appointed (section 32(3)(a)).
3. ZLZ attended the hearing and provided evidence. ZLZ did not speak for long, but she was very clear that she wanted to go 'home', meaning that she wanted to return to her farm. This was consistent with the evidence which had been provided by her children. ZLZ was unable to tell me who assisted her at her farm, and I did not press her to provide her views about the level of care which was required as this was not an issue in dispute.
4. It was clear that ZLZ placed value on her two companion dogs, which continued to live at the farm and were cared for by AFE and TLJ.
5. ZLZ told me that it was her preference to have her children involved in making decisions for her. ZLZ stated at the hearing that she did want her family involved in decisions regarding her, and that she did not want just one person appointed to make decisions. She was very clear that she wanted more than one person to have the ability to make decisions, so that there would be a fairer representation of her wishes. This was also consistent with the evidence of the applicant, who had stated that ZLZ said she wanted all her children to be able to make decisions for her, although he queried whether this was possible. ZLZ appeared to accept that a guardian was needed.
6. When considering the will and preference of ZLZ, I took into account and placed weight on the earlier enduring financial power of attorney and medical treatment decision maker appointment appointing AFE and TLJ as decision makers. I view this as a very clear indication that when ZLZ had decision making capacity she had a clear preference to have AFE and TLJ make decisions for her. At the time of the hearing ZLZ had a continuing close relationship with all her children, in particular AFE who was providing her with extensive care and support.
7. I was provided no evidence as to why ZLZ did not make an appointment for a personal decision maker, and why she did not appoint her other two children.

IS A SUPPORTIVE GUARDIANSHIP ORDER APPROPRIATE?

1. Appointing a supportive guardian would be less restrictive than appointing a guardian. A less restrictive order would be consistent with the principles in section 8 of the Act.
2. VCAT has power to appoint a supportive guardian whenever an application is made for appointment of a guardian, as provided by section 87 of the Act.
3. However, to appoint a supportive guardian for a person, the person must consent and must have decision-making capacity when practicable and appropriate support is provided, as set out in section 87(2) of the Act.
4. In the present case, this less restrictive alternative was not available because the medical evidence was very clear ZLZ lacked decision making capacity because of her diagnosis of dementia.
5. Accordingly, that less restrictive alternative is not available in this case.

1. Section 30(2)(b) of the Act says VCAT may only appoint a guardian for a person if satisfied that the person needs a guardian.
2. Section 31 of the Act sets out a number of matters VCAT must consider in determining whether a person needs a guardian. VCAT must consider the person's will and preferences (as far as they can be ascertained) and whether decisions about the relevant personal matters could be more suitably made informally or could reasonably be made by mediation, negotiation or some similar method. VCAT must also consider the wishes of any primary carer, relative or other person with a direct interest in the application and must also consider the desirability of preserving existing relationships important to the person with a disability.
3. In this case, ZLZ needs a guardian because, although she has attorneys appointed to make financial and medical decisions, she has not appointed a decision maker for personal decisions, such as where she lives.
4. The medical evidence clearly supports the view that due to dementia, ZLZ is unaware of her cognitive decline and is unable to retain information to make a decision about where she lives. She appears to be unaware of the extent of her care needs and the lack of available care in her community and was unable to appropriately manage her medications and foot care prior to her daughter becoming more actively involved in her care. All of these factors provide compelling evidence that ZLZ is unable to make decisions about where she lives taking into account her significant care needs and the dangers she is exposed to on a working farm.
5. I have considered ZLZ's will and preferences - that is that she wants to return home and that she wants all her children involved in decision making.
6. Although it is not my role to make a decision regarding whether or not ZLZ can live at home, I am very mindful that AFE seeks to be appointed as guardian, and that she supports the view that her mother enter into residential aged care, which is not aligned with ZLZ's wishes.
7. I have also taken into account ZLZ's wish to have all her children involved in decision making, which I am unable to give effect to as there is a clear disagreement between JMR and his other siblings regarding their mother's ability to return to the farm. I have been given no evidence regarding the relationship between JHR and his siblings, but I have formed the view that is it not appropriate to appoint all siblings as decision makers as I am not satisfied that they will be able to work together.
8. I have also considered possible informal means of making decisions about personal matters for ZLZ and the wishes of her family, and in this case, I have formed the view that less formal decision-making is not practicable. That is because of the clear disagreement regarding where ZLZ should live when she is discharged from hospital.
9. Appointing a guardian will not interfere with the relationships that are important to ZLZ because ZLZ will be able to continue to receive visits and communication from all her children and friends, and there is no evidence to suggest that there should be any restrictions placed on who can communicate with her. I am not making an appointment which will allow a guardian to restrict access to ZLZ.
10. Taking all this into account, I am satisfied that ZLZ needs a guardian to make decisions about where she lives.

1. Section 30(2)(c) says VCAT may only appoint a guardian for a person if satisfied that the guardianship order will promote the person's personal and social wellbeing. I am satisfied in this case that the order will do so because a guardian will be able to ensure that ZLZ receives appropriate care and support, and that she will be able to live in an environment in which she is safe.

1. I have decided to appoint AFE and TLJ to be guardians for ZLZ.
2. Both AFE and TLJ consented to the appointment and are willing to make a decision about where ZLZ should live.
3. Given that AFE and TLJ had been appointed by ZLZ to be her financial and medical decision makers when she had capacity to make that decision, it appears clear to me that she wanted them involved in decision making. This is reflected by the evidence that was provided at the hearing.
4. I am also satisfied that AFE and TLJ are able to work together to make decisions for ZLZ.
5. I am not persuaded that JMR should be appointed to be guardian. Although JMR has a close relationship with his mother, and she seeks to have all her children involved in decision making, I am not persuaded that JMR will be able to work co-operatively with the other guardians to make decisions for his mother.

1. The order says that the guardian can make decisions about where ZLZ lives.
2. The Act gives guidance for the guardian about how to exercise their decision-making power. The principles in section 8 and section 9 of the Act apply to those decisions.
3. Section 9 of the Act sets out the principles applying when a decision is made for a represented person. It says the guardian 'should give all practicable and appropriate effect to the represented person's will and preferences'. It also says that ZLZ's will and preferences 'should only be overridden if it is necessary to do so to prevent serious harm' to her.
4. Section 41 sets out further requirements of the guardian. Some of the requirements most relevant in this case are that the guardian must act as an advocate for the represented person and must act in such a way as to protect her from neglect abuse or exploitation.
5. Section 9(1)(d) also requires that a guardian should act in a manner that recognises the importance of a companion animal.

1. This order will be reassessed before after one year. ZLZ or anyone else can apply for the reassessment to be sooner if that is necessary.