Donna is 83. Her husband, Kevin, died three years ago. She owns her own home and a holiday house. She receives $90,000 a year from a superannuation fund. Donna worked as a secondary school teacher. In her retirement she has enjoyed activities including golf, bridge, lunch with friends, travel, and gardening.
Donna has two children, Travis and Christine. When Donna met her solicitor to settle Kevin’s estate she appointed Travis as her attorney for personal and financial matters and as her medical treatment decision maker.
Travis has lived with Donna for four years, since the end of his marriage. Christine is concerned that Donna gives Travis money. Her concern has grown as Donna is showing signs of dementia and Travis is taking financial advantage of her.
Christine consults a lawyer about getting the enduring power of attorney (EPOA) revoked and for her to be appointed administrator instead. She is not even sure if Donna had capacity to make the EPOA in the first place. She also thinks that if a guardian is appointed then it will be possible to make a decision removing Travis from the house. This would make it easier for Christine to support Donna so that she can remain at home.
Possible outcomes for Donna under the Guardianship and Administration Act 1986
- VCAT may decide that Donna lacks decision-making capacity to make decisions about whether Travis continues to live with her, and decides a guardian is needed because this is in the best interests of Donna (given the family is in some dispute and Christine has alleged that Travis is misusing Donna’s money).
- VCAT may revoke the EPOA and decide that Donna needs an administrator. Travis and Christine are in dispute. Travis contends that Christine is self-interested and is not an appropriate person to make financial decisions for Donna. VCAT decides that State Trustees is the most appropriate appointment as administrator due to the family conflict.
Possible outcomes for Donna under the new Guardianship and Administration Act 2019
- VCAT may decide that Donna lacks decision-making capacity to make decisions about whether Travis continues to live with her (although it appears she wants him to live with her). VCAT considers that it would not promote Donna’s personal and social wellbeing to appoint a guardian because decisions about Travis’s continued occupation with Donna might be made less formally, through mediation.
- VCAT may revoke the EPOA and decide that Donna needs an administrator. They may consider that Christine is an appropriate administrator although Travis disagrees. He contends that Christine will promote her own self-interest and will not take his views into account.
- Another possible outcome is that Donna may be appointed a supportive administrator for financial decisions. VCAT may revoke the existing EPOA to Travis, but determine that Donna could manage her finances with practicable and appropriate support. Christine is determined as an appropriate supportive administrator for Donna. In that role, Christine could visit Donna every Tuesday night, have dinner and go through household accounts together. It may be that in this role, Christine could follow up with the relevant recipient of a payment that Donna accidentally made twice in order to arrange reimbursement. Donna struggles with dealing with telephone customer service systems and would be grateful that Christine can do this for her.