19 December 2023

Will and preference – the right to make bad decisions

Recent cases before the Guardianship List of the Victorian Civil and Administrative Tribunal have highlighted the significant shift in the Tribunal’s approach to the wishes of a person under a disability.

With the introduction of the Guardianship and Administration Act 2019 (replacing the previous 1986 Act), administrators, guardians and the Tribunal are now required to consider the will and preference of a represented person as paramount.

The previous legislation required decisions to be made in the best interest of the represented person. This is considered a paternalistic approach and did not afford a represented person the chance to appropriately participate in their own decision-making.  

Now, decision-makers are only empowered to override a person’s will and preference when it may cause serious harm.

In EAD (Guardianship) [2023] VCAT 1129, State Trustees Limited (STL) sought advice in relation to their client who insisted on giving her discretionary allowance away to romance scammers. Despite discouragement from concerned parties, EAD could not be convinced that she was being scammed and was convinced she was in a relationship with a major Hollywood film star.

The Tribunal determined that STL could continue to give EAD her discretionary allowance (with the knowledge she would likely pay the entire amount to the scammers) on the basis that:

1. It was an amount she can presently afford;

2. It would cause her significant distress if her ‘relationship’ was impacted; and

3. They were declining other concerning requests for funds from EAD.

STL have faced similar challenges in AFB (Guardianship) [2023] VCAT 1081, where a represented person became severely distressed at the prospect of challenging her mother’s estate for further provision, having formed the view (following pressure from family members who benefited from the decision) that to do so would result in her being cursed.  AFB’s claim was likely to succeed and would provide her with financial and personal security that she could otherwise not achieve.

The Tribunal considered that STL were right to consider a claim being brought, but having regard to AFB’s clear will and preference against that course of action, directed STL not to issue the claim. They did so even though AFB is in financial hardship and a successful claim would have alleviated that hardship.    

Assessing will and preference of a person under a disability is a complicated and delicate matter for all involved. These decisions have only served to highlight the difficulty faced by those weighing up the need for protection of vulnerable persons who may be subject to influence or coercion, and the right of persons with a disability to be involved in decision-making about their own lives.

For more information about guardianship and administration matters, please contact our team on (03) 9646 4477.

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