Victorian Civil & Administrative Tribunal (VCAT) decision on Guardianship of the Elderly

Victorian Civil & Administrative Tribunal (VCAT) has rejected a son’s claim to replace the public guardian appointed from the Office of the Public Advocate for his mother, who is in a nursing home. He had claimed that the current guardian was not an appropriate person as she had not paid appropriate regard to his mother’s interests and her desire to return home in particular.

VCAT rejected both of the son’s submissions, finding he had failed to establish that his mother had no need for a guardian, and found that she had a disability that impaired her capacity to make reasonable decisions about matters affecting her.

Further, the Tribunal considered that the appointment of an officer of the Office of the Public Advocate as guardian would be more appropriate than appointing the son to that position, based upon the other factors including:

• the son having a possible conflict of interest in that he lived in his mother’s home and was involved in a dispute with the administrator about its sale
• his mother had previously applied for intervention orders to be taken out against her son
(AS (Guardianship) [2006] VCAT 2143 (23 October 2006)