PROTECTING THE VULNERABLE THE ROLE OF VCAT s GUARDIANSHIP LIST AND THE ROLE OF LAWYERS. John Billings. Deputy President. Guardianship List, VCAT

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1 PROTECTING THE VULNERABLE THE ROLE OF VCAT s GUARDIANSHIP LIST AND THE ROLE OF LAWYERS John Billings Deputy President Guardianship List, VCAT 55 King Street Melbourne 3000 Tel (03) Fax (03) Protecting the vulnerable - by John Billings, Deputy President, VCAT 1

2 PROTECTING THE VULNERABLE THE ROLE OF VCAT s GUARDIANSHIP LIST AND THE ROLE OF LAWYERS The Victorian Civil and Administrative Tribunal (VCAT) Guardianship List VCAT (the Victorian Civil and Administrative Tribunal) has three Divisions, including the Human Rights Division. The Guardianship List, within the Human Rights Division, has power to make orders under the Guardianship and Administration Act 1986 ( the GA Act ), the Instruments Act 1958 and the Medical Treatment Act 1988 for the protection of persons aged 18 years or over who have a disability 1. Disability is defined in the GA Act as intellectual impairment, mental disorder, brain injury, physical disability or dementia 2. It is important to remember that a person s condition may be static, or it may be progressive, fluctuating, or improving. The GA Act empowers VCAT to make guardianship and administration orders. VCAT can appoint a guardian to make decisions about health care, accommodation or other personal matters and can appoint an administrator to manage a person s financial and legal affairs. Enduring powers While competent, anyone may make an EPG (enduring power of guardianship) and appoint an enduring guardian to make personal decisions; make an EPA (enduring power of attorney) and appoint an attorney to manage their financial and legal affairs, or make an EPA(MT) (enduring power of attorney (medical treatment)) and appoint an agent to make decisions in relation to medical treatment. Depending on the circumstances, if a person has made an EPG or EPA(MT) there may be no need for VCAT to appoint a guardian, or if the person has made an EPA there may be no need for VCAT to appoint an administrator. The GA Act, the Instruments Act and the Medical Treatment Act empower VCAT to make orders in relation to EPGs, EPAs and an EPAs(MT) respectively. The GA Act It is expressly provided in the GA Act that Parliament intends that the Act be interpreted and VCAT s jurisdiction be exercised so that the means that are least restrictive of a person s freedom of decision and action as is possible is adopted; the best interests of a person are promoted; and the wishes of a person are wherever possible given effect to 3. 1 See Billings, Davis and Scott VCAT Laws and Procedure Guardianship and Administration, Anstat Pty. Ltd., GA Act s 3 3 GA Act s 4(2) 2

3 Guardianship orders VCAT can appoint a guardian for a person if satisfied in particular that the person has a disability; is unable by reason of the disability to make reasonable judgments about his or her person or circumstances; and needs a guardian. VCAT cannot appoint a guardian unless it is satisfied that the order would be in the best interests of the person 4. A guardian may be required to make decisions about matters such as health care, where the person is to reside, the services to be provided (for example, meals, house cleaning, or in-home care), and access to that person by others. VCAT must consider whether, among other things, there is an option that would be less restrictive of the person s freedom than making a guardianship order. Any order made must be the one that is the least restrictive as possible 5. In the context of health care, where there is a person responsible (defined in the GA Act 6 ) who can consent to medical treatment, there may be no need for a guardian. (The person responsible can be an agent appointed under an EPT(MT) but more often will be the patient s spouse or domestic partner or nearest relative as defined in the Act 7 ). Alternatively, there may be no need for a guardian if the person has made a valid EPG authorising an enduring guardian to make the required decisions. A proposed guardian will often be a family member or friend. In deciding whom to appoint as guardian VCAT must be satisfied that the proposed guardian is aged 18 years or over and consents to act. In addition, VCAT must be satisfied that the proposed guardian will act in the best interests of the person; does not have a conflict of interest; and is a suitable person to act as guardian. Finally, in considering whom to appoint as guardian, VCAT must take into account the wishes of the person with a disability; the desirability of preserving existing family relationships; the compatibility of the proposed guardian with the person s administrator (if there is one); and whether the proposed guardian will be available and accessible to the person so as to fulfil the requirements of guardianship 8. Where no other person fulfils the requirements for appointment as guardian VCAT may appoint the Public Advocate. (The Public Advocate s functions, set out in the GA Act, involve promoting the welfare of persons with a disability but include acting as guardian in individual cases. OPA (the Office of the Public Advocate) can also investigate cases referred by VCAT 9 ). 4 GA Act s 22 5 GA Act s 22 6 Section 37(1) 7 Section 3 8 GA Act s 23 9 See GA Act s 16(1)(ha) 3

4 Administration orders VCAT can appoint an administrator if satisfied in particular that the person has a disability; is unable by reason of the disability to make reasonable judgments about matters relating to his or her estate (financial and legal affairs); and needs an administrator. VCAT cannot appoint an administrator unless it is satisfied that the order would be in the best interests of the person 10. VCAT must consider whether, among other things, there is an option that would be less restrictive of the person s freedom than making an administration order. Any order made must be the one that is the least restrictive as possible 11. For instance, if the person has made a valid EPA and VCAT is satisfied that it is in the person s best interests for the EPA to continue, VCAT may decide that there is no need for an administrator. 12 A proposed administrator will often be a family member or friend, but there are also independent professional administrators, including State Trustees Limited and other trustee companies, accountants and legal practitioners. (Professional administrators are entitled to remuneration as VCAT may approve. This is normally a commission on income together with a once-only commission upon the realisation of assets of the estate). In deciding whom to appoint as administrator, VCAT must be satisfied that the proposed administrator has consented to being appointed. VCAT must also be satisfied that a proposed administrator will act in the best interests of the person; does not have a conflict of interest; and is a suitable person to act as administrator. VCAT must also be satisfied that the proposed administrator has sufficient expertise to administer the estate or that there is a special relationship or other special reason why that person should be appointed as administrator. Finally, in considering whom to appoint as administrator, VCAT must take into account the wishes of the person with a disability and the compatibility of the proposed administrator with the person and with the person s guardian (if there is one) 13. Ordinarily, VCAT confers on the administrator authority to do relation to a person s financial and legal affairs generally all that the person may lawfully have done for themselves but for their incapacity but there may be cases where, for instance, the administrator s powers are limited to securing the person s interest in property or bringing or defending proceedings on their behalf 14. Duties of guardians and administrators VCAT orders record VCAT s essential findings and specify the powers and duties of the guardian or administrator. VCAT subsequently supervises the decisions and actions of 10 GA Act s GA Act s See also dicta by Gobbo J in Moore v. Guardianship and Administration Board [1990] VR 902 at 916 regarding informal or ad hoc administrators whose existence may obviate the need for an administration order. 13 GA Act s See GA Act Part 5 Division 3 and Division 3A 4

5 guardians and administrators. If necessary, a guardian or administrator may apply to VCAT for advice 15. VCAT may approve or disapprove of any act proposed by a guardian or administrator. The GA Act imposes on guardians and administrators the duty to act in the person s best interests. Among other things, this means acting in consultation with the person, taking into account the person s wishes, so far as possible, and encouraging the person to become capable of making reasonable decisions 16. VCAT usually directs an administrator to submit a Financial Statement and Plan, providing information about the income, expenditure, assets and liabilities of the estate but also the administrator s proposals for managing the estate. VCAT can approve the plan or give advice to the administrator. Administrators are also usually required to lodge an Account by Administrator at the end of each financial year. An independent examiner appointed by VCAT examines the Accounts and makes a report to VCAT 17. The Financial Statement and Plan and Account by Administrator forms can be downloaded from VCAT s website. Orders in relation to EPAs If the person has made an EPA VCAT may make orders under Part XIA of the Instruments Act VCAT can revoke the appointment of an attorney if satisfied that the person who made the EPA no longer has legal capacity and, further, that it is not in the best interests of the person for the power to continue 18. Alternatively, if the person has lost capacity and the attorney seeks to resign, the attorney may resign with VCAT s leave 19. VCAT also has power to suspend or vary or give directions in relation to an EPA (including a direction that the attorney lodge accounts for examination) 20. A presidential Member of VCAT may make declarations including a declaration that an EPA is invalid if satisfied that the donor lacked capacity when making the EPA; the EPA does not comply with the requirements of Part XIA of the Act, or that, for example, the donor was induced to make the EPA by dishonesty or undue influence 21. If VCAT makes an administration order in respect of a person who has made an EPA the attorney may exercise power only to the extent authorised by VCAT GA Act ss 30 and GA Act ss 28 and GA Act s Instruments Act s 125X 19 Instruments Act s 125M 20 Instruments Act s 125Z 21 Instruments Act s 125Y 22 Instruments Act s 125G 5

6 Interstate orders and interstate EPAs On the application of the Public Advocate, or of a guardian or administrator (or equivalent) appointed by an interstate Board or Tribunal, VCAT may register an interstate order. Registration gives the interstate order the same force and effect according to its terms as a guardianship or administration order under the GA Act 23. If an EPA is made in another State or Territory and complies with the requirements of that jurisdiction then, to the extent that the powers it gives could validly be given by a Victorian EPA, the interstate EPA is to be taken to be an EPA made under and in compliance with Part XIA of the Instruments Act In most jurisdictions there are corresponding laws at least with respect to recognising VCAT orders. AGAC (the Australian Guardianship and Administration Committee), a national body that is comprised of Board and Tribunals, Public Advocates, Public and Adult Guardians, and State Trustees or their equivalents in each State and Territory of Australia, is developing a website with links to member organisations and legislation in their jurisdictions. The nature of proceedings Guardianship List proceedings are not adversarial. The objective is for the Tribunal to determine the needs and wishes of the person with a disability and to promote the person s best interests, making a protective order if necessary. The VCAT Act and Rules The Victorian Civil and Administrative Tribunal Act 1998 ( the VCAT Act ) established the Tribunal and contains provisions regarding its essential procedures. Of particular significance for Guardianship List proceedings are the duty to act fairly 25 and the application of the rules of natural justice 26. The Tribunal must act with as little formality and technicality and with as much speed as the requirements of the legislation and a proper consideration of the matters before it permit 27. The Tribunal is not bound by the rules of evidence and may inform itself on any matter as it sees fit 28 but must always allow a party a reasonable opportunity to call or give evidence, to examine, cross-examine or re-examine witnesses and to make submissions 29. Parts 9, 12 and 14 of Schedule 1 to the VCAT Act set out exceptions in relation to Guardianship List proceedings under the GA Act, the Instruments Act and the Medical Treatment Act. Part 5 of the Victorian Civil and Administrative Tribunal Rules 1998 includes rules in relation to requests to access proceeding files GA Act s 63E 24 Instruments Act s VCAT Act s VCAT Act s VCAT Act s 98(1)(d) 28 VCAT Act s VCAT Act s See The Herald and Weekly Times Pty. Ltd. v. Victorian Civil and Administrative Tribunal and ors [2005] VSC 188 6

7 Applications Before making an application, careful consideration should be given to whether an order is actually required or whether the person s needs can be met by some means less restrictive of his or her freedom. Subject to that, anyone may apply to VCAT at any time 31. There is no application fee. Application forms can be downloaded from VCAT s website. The application prompts the applicant to indicate who are the parties to the application and other persons entitled to notice. Any special hearing requirements (for example, the need for an interpreter or the need for security) can be noted there. There is also provision for applicants to indicate any dates that would not be suitable for the hearing. Generally, it is the responsibility of the applicant to serve a copy of the application on other parties 32. The applicant must provide VCAT with medical or other expert reports and must attend any hearing prepared to give further evidence. Reports such as social work and occupational therapists reports and ACAS (Aged Care Assessment Service) reports often assist the Tribunal. Adjournments and withdrawn applications Requests for an adjournment or for leave to withdraw an application may be made in writing at any time prior to the hearing or orally at the hearing. Any such request should be supported by medical reports or other documentation and, where possible, the Tribunal should be informed of the attitude of other parties to any adjournment request. Always bearing in mind the protective nature of the jurisdiction, the request should be accompanied by a statement as to why adjournment or withdrawal of the proceeding would at least be consistent with the person s best interests. The withdrawal of an application does not prevent the making of a subsequent application 33. VCAT has developed adjournment and withdrawal forms that can be used. The forms can be downloaded from VCAT s website. Hearings The Guardianship List endeavours to schedule hearings as close as possible to the place where the person with the disability resides. Hearings are held at 55 King Street, Melbourne and at numerous suburban and regional venues throughout Victoria including court houses, hospitals, nursing homes and community health centres. Especially in urgent cases hearings may be conducted by telephone or video link. If necessary VCAT may make a temporary order appointing a guardian or administrator pending a hearing 34. Hearings are conducted by a Tribunal Member, usually sitting alone. Guardianship List Members are qualified in law, medicine, social work and other relevant disciplines. 31 See eg. GA Act ss 19 and VCAT Act s VCAT Act s 74 and Schedule 1 Part 9 Clause GA Act ss 33 and 60 7

8 Hearings are conducted as informally as the circumstances permit, often with the Member and others attending seated around a table. Very often there is no controversy about a person s disability and incapacity and the need for an order but sometimes there can be disagreement and conflict surrounding these and other issues. Family members and other interested persons are invited to participate in hearings but the attendance of medical practitioners or other experts who have assessed the person s capacity is less common. The Tribunal may conduct part of the hearing in private in order to minimise any distress or indignity to the person with a disability and to discern the person s true wishes 35. Evidence of a person s previously expressed wishes will usually be material though the Tribunal will assess its validity and weight. Any guardian or administrator appointed should obviously also give that due consideration. Legal representation More often than not in Guardianship List proceedings the parties are unrepresented. In cases where there is essentially no controversy legal representation may not be necessary. Lawyers can of course still assist clients in deciding whether and how to apply or can explain the law to the person with a disability. In cases where there is some dispute or a significant issue of law, lawyers can prepare their client s case for hearing and participate in the proceeding, including any pre-hearing process 36. Case management Non-contentious hearings are commonly completed within an hour. Especially in cases where lawyers are involved and in which there are issues in dispute more time will be required. It is therefore desirable for lawyers to notify the Guardianship List Registrar in writing as soon as possible that additional time may be required and to provide a realistic indication of the urgency of the matter and an estimate of the time required. The Tribunal may give pre-hearing directions in Chambers on its own initiative 37. It is often convenient to do so where there is an application for revocation of an EPA. Directions normally require the applicant to make a statement in writing containing the grounds for the application and require the attorney (if not intending to resign) to make a statement in response and also to produce bank and other records in relation to the use of the EPA. Depending on the circumstances the Tribunal may on its own initiative schedule a Compulsory Conference 38 or Mediation 39 but lawyers may also ask the Tribunal to do so. Compulsory 35 VCAT Act s VCAT Act s VCAT Act s VCAT Act s 83 8

9 Conferences can be helpful when there appear to be issues capable of resolution prior to what may be a protracted hearing and where it appears that directions would be helpful in bringing focus to other issues. Mediation can take place at any time and can be helpful especially in cases where there are issues that may continue to surface from time to time, such as questions of access by family members and others to the person with a disability. Of course, any settlement reached between the parties is subject to the Tribunal being satisfied that any proposed orders would be in the best interests of the person with a disability. In exceptionally complex proceedings, VCAT may schedule directions hearings and give directions as to the filing of documents including witness statements and submissions 40. Access to proceeding file By the time the hearing is scheduled the proceeding file may contain a statement by the applicant, medical and other expert reports and submissions by interested parties. There may also be an OPA report where the Tribunal has referred a proceeding to OPA for investigation. Lawyers and others preparing for a hearing are able to request access to the Tribunal s proceeding file but should always do so at the earliest opportunity. They should also be aware that documents could be filed subsequently so that a further request might need to be made at the hearing. The Tribunal may direct that the whole or part of a proceeding file not be released on grounds including that to do so would cause serious injury to a person, would involve an unreasonable disclosure of personal information, or would involve a breach of confidence. The Tribunal sometimes directs that documents be released to the person s legal representatives only 41. The duties of lawyers Given that persons who have or who may have a disability are very often vulnerable, the common duties of lawyers to clients and to the Tribunal are particularly important in Guardianship List proceedings. So far as the duty to the Tribunal is concerned, lawyers must, among other things, act with competence, honesty and candour 42. So far as the duty to clients is concerned, lawyers should be clear for whom they act and be sure about the basis for their instructions. The interests of family members who express concern for the welfare of a person with a disability may not necessarily coincide with that person s interests or with each others interests. Therefore, where, for instance, lawyers have previously acted for more than one family member there can arise a conflict between the lawyer s duty to the person with a 39 VCAT Act s VCAT Act s VCAT Act s 146. See also The Herald and Weekly Times Pty. Ltd. v. Victorian Civil and Administrative Tribunal and ors [2005] VSC See generally, Dal Pont Lawyers Professional Responsibility in Australia and New Zealand, (2 nd ed) Law Book Company, 2001, Sydney pp. 443 ff. 9

10 disability and the duty to other current or former clients. Special care must be taken in relation to confidential information provided to the lawyer by a client 43. The capacity of a person to retain a lawyer prior to the making of an administration order is subject to general principles of contract law. Where an administrator has been appointed the GA Act provides that a represented person is deemed incapable of becoming liable under any contract without the order of the Tribunal or the written consent of the administrator 44. In practice this will generally not preclude a represented person who is seeking to have an administration order revoked on the grounds that he or she has recovered capacity from being assisted or represented by lawyers. Costs Costs orders are rarely sought and rarely made in Guardianship List proceedings. Nevertheless, section 109 of the VCAT Act applies. It provides that, subject to the Act, each party is to bear their own costs. VCAT may order a party to pay the costs of another party but only if satisfied that it is fair, having regard to whether a party has conducted the proceeding in way that unnecessarily disadvantaged another party; whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding; the relative strengths of the claims made by each of the parties; the nature and complexity of the proceeding; and any other matter VCAT considers relevant. In specified circumstances, a costs order can be made against a party s representative 45. Occasionally the question arises whether some part of the costs should be paid out of a represented person s estate. The Tribunal rarely makes such orders and would always be cautious before making such an order. However, given the protective nature of the jurisdiction it is important that there be no financial or other disincentive to anyone making an application that has merit and is genuinely designed for another person s protection. Similar considerations may arise when an order of costs is sought against an unsuccessful applicant. Reasons for decision In the majority of cases the Member announces the decision of the Tribunal and gives reasons orally at the hearing. A party may request written reasons within 14 days 46. Reviews, rehearings, appeals and reassessments If a person in respect of whom an order was made did not attend and was not represented at the hearing and had a reasonable excuse, section 120 of the VCAT Act provides for re-opening 43 See eg. R v. P [20010 NSWCA 473 as to information provided by the person with a disability and, more generally, Sent v. John Fairfax Publications Pty. Ltd. [2002] VSC GA Act s 52(1) but note especially sub-section 52(3) 45 VCAT Act s 109 (4) 10

11 the proceeding. Alternatively, a party (or with VCAT s leave a person entitled to notice of the application) may apply to VCAT under section 60A of the GA Act or section 125ZC of the Instruments Act for a rehearing by a Member more senior than the Member who presided at the first hearing. A party may appeal to the Court of Appeal or to the Trial Division of the Supreme Court on a question of law 47. Whether or not a party applies for a review or a rehearing or appeals, VCAT must reassess a guardianship or administration order generally no later than three years after the date of the order 48. Normally a guardianship order is reassessed within one year and an administration order is reassessed within three years but VCAT may conduct a reassessment at any time - on its own initiative or an application by any person. Application forms can be downloaded from VCAT s website. A material change of circumstances (such as the person regaining capacity, or a guardian or administrator being no longer willing or able to act) may be the reason for seeking an early reassessment. Alternatively, there may be the claim that the guardian or administrator is not acting in the best interests of the person. Upon completing a reassessment, VCAT may revoke the guardianship or administration order or make such other orders as may be required in the person s best interests 49. Medical or dental treatment, special procedures, and refusal of medical treatment As noted earlier, the person responsible for a patient aged 18 years or over can consent to medical or dental treatment on the person s behalf 50. However, only VCAT can consent to a special procedure 51 (defined in the GA Act to be a procedure that is intended, or is reasonably likely, to have the effect of rendering the patient permanently infertile; any procedure carried out for the purposes of medical research; termination of pregnancy; or removal of tissue for the purposes of transplantation to another person 52 ). The Medical Treatment Act enables a competent patient to refuse medical treatment or to give an EPA(MT) and so, in the event that the patient loses capacity, authorise an agent to refuse medical treatment 53. Alternatively, VCAT can appoint a guardian for this purpose but only if satisfied that it is in the patient s best interests 54. Conclusion The jurisdiction given by Parliament to VCAT arises from the need to protect adults who, by reason of a disability, are unable to make decisions in their own best interests. If competent, a person may make an EPA, an EPG or an EPA(MT) and so chose who can make decisions in 46 VCAT Act s VCAT Act s GA Act s GA Act s GA Act s 39 (b) 51 GA Act s 39 (a) 52 Section 3 53 Medical Treatment Act ss 5 and 5A 11

12 the event that he or she loses capacity. If a person loses capacity without having made provision in this way, or if there is no other less restrictive option, VCAT may decide that the person needs a guardian or administrator or both. In determining an application for a guardianship or administration order VCAT must decide whether it is in the person s best interests to have a guardian or administrator. Any guardian or administrator appointed will be obliged to make decisions in the person s best interests and will be accountable to VCAT for decisions made and action taken. With the aid of technology, Guardianship List Members have for some time been able to produce orders for distribution immediately after hearings. VCAT is currently developing VCAT Online (introduced in the Residential Tenancies List in 2000) to expedite communications between the List and major users. This will facilitate the transmission of administrators accounts and examiners reports between VCAT and the examiner. The system will in time permit applications to be lodged online and enable notice of hearing to be given electronically. In the meantime, VCAT is required to commence hearings of guardianship and administration applications within 30 days of an application being made and generally meets that target 55. It is understood, however, that ordinarily when a person requires a guardian or administrator, the sooner they are appointed the better. While recognising the uniqueness of each person who may need the Tribunal s protection, VCAT has been developing a number of case management strategies to expedite orders in relatively straightforward cases so better to be able to meet the demands of complex cases. Lawyers too have an important role to play in protecting the vulnerable. They can explain the law to persons with a disability, or to others who are concerned for their welfare. Lawyers can assist those contemplating applying to VCAT to decide if an application to VCAT is actually necessary. If an application is necessary, lawyers can advise applicants how best to apply. They can assist any party for whom they act to prepare for the hearing and may be able to represent them at the hearing. Where cases are unusually complex, lawyers serve their clients and the administration of justice well by endeavouring to isolate the real issues in dispute and, if those issues cannot be resolved informally, to notify the Tribunal at the earliest opportunity of the estimated duration of the hearing and whatever special requirements there may be. 4 October 2005 Websites VCAT - OPA - AGAC (in development) 54 See BWV [2003] VCAT 121 and Gardner; re BWV [2003] VSC GA Act ss 21 and 45 12