We have previously reported on the provisions and commencement of the new Guardianship and Administration Act 2019 (new Act), which commenced on 1 March 2020.
VCAT has now handed down its first decision since the new Act commenced. The decision of EHV (Guardianship) [2020] VCAT 501 considered whether EHV’s share in a property should be sold, where EHV’s “will and preference” was that the property not be sold. EHV participated in all hearings, and objected to the sale of the property.
Background
EHV is 63 and suffers from an acquired brain injury resulting from long term alcohol and drug abuse, and possibly an organic cause. EHV had “repeatedly and consistently expressed his firm wish, or his will and preference, to return to live in the property” although evidence was that his attempts to live in the property resulted in a return to substance abuse, admissions to hospital and/or arrest for intoxication-related offences, welfare organisations refusing to provide services to him at home and neighbours raising concerns about his behaviours.
Legal issues and the new Act
Both the new Act and the old Act allow an administrator to sell, exchange, partition or convert into money any property. However, under the new Act, VCAT was required to apply the general principles under section 8 to any decision including supporting EHV to make and participate in decisions affecting him and to express his will and preferences among other things. The new Act provides that the will and preferences of the represented person should direct as far as practicable decisions made for that person.
So what of EHV’s firm wish, or will and preference, to return to live in the property? And how did VCAT balance the new Act against EHV’s right to freedom of movement and property rights under the Charter? And what of EHV’s human rights?
VCAT considered the administrator’s obligations generally, and financial factors relevant to EHV’s will and preference as well as accommodation alternatives for EHV. VCAT ultimately overrode EHV’s will and preference, on the basis that the sale of the property was necessary to prevent serious harm. Serious harm was both financial harm (EHV continuing to bear unpaid debts and a shortfall of income for his living expenses) and personal harm (in the past, EHV had been unable to live unsupervised in the community without relapsing and hospitalisation) and the loss of opportunity to remain in aged care for financial reasons and behavioural reasons with the risk that he may become homeless. From a human rights perspective, the Tribunal concluded that to limit EHV’s right to freedom to choose where to live was justified given his dire financial circumstances, in turn giving rise to a need to sell the property.
Next steps
The new legislation adopts a substantially different fundamental approach and in line with the UN Convention on the Rights of Persons with a Disability. This will require administrators, family members and those subject or potentially subject to administration orders to consider how best to approach any Tribunal hearings. Documenting a person’s “will and preference” will assist both the person and the Tribunal to weigh up complex competing rights and obligations.
For more information or if you or your clients require assistance, please contact us.