Elderly couple’s innocent housing application lands them in VCAT

Muriel and Mark* are married and in their mid seventies. They contacted Loddon Campaspe CLC’s office of Seniors Rights Victoria several months ago. At the time they were living in low-level care in a facility in Gippsland.

Muriel and Mark both have children from previous marriages and there was a history of conflict between members of their families. As a result, Muriel and Mark have a VCAT-appointed Administrator who manages their financial and legal affairs.

Muriel and Mark wanted to relocate to a Bendigo facility as they both have family in the area. They asked several facilities if they could provide them with a double room.

The Manager of one aged-care facility was concerned about their request and, based on what he thought was his duty of care, made an application to the Victorian Civil and Administrative Tribunal (VCAT) for the appointment of a guardian to manage Muriel and Mark’s lifestyle choices.

Muriel contacted Seniors Rights Victoria for advice and assistance in relation to the Manager’s application and the upcoming VACT hearing. Muriel and Mark were assessed by a GP who determined they were incapable of making reasonable decisions in relation to their lifestyle. The GP noted that Mark had damaged hearing due to a stroke, which the GP regarded as a cognitive impairment.

At the VCAT hearing, a Seniors Rights Victoria’s lawyer argued that Muriel and Mark had made a sound and reasonable decision and that there was no need to appoint a guardian. Initially, the Tribunal member suggested the appointment of a family member with limited powers to make decisions regarding accommodation.

The SRV lawyer argued that this was not the least restrictive option, and that given the circumstances the applicant (the facility Manager) had not established a need for the appointment of a guardian. The SRV lawyer also argued that the GP’s assessment of Mark was flawed because it confused his compromised verbal skills with his cognitive ability.

The Tribunal member decided that Muriel and Mark were capable of making such a decision and on that basis did not appoint a guardian for either of them. The Tribunal member also criticised the GP’s assessment of Mark.

Muriel and Mark attended the Tribunal hearing and expressed their wishes and the reasons for them directly with the Tribunal member.

This case raised several issues, including the interpretation of “duty of care”. It also highlighted the importance of providing a local specialised service, such as Seniors Rights Victoria, in a regional area.

 

Image: tobiasgh

Please note: the above image is provided for illustrative purposes only and does not represent any person related to the matter referred to in this post.

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