BLS

[2017] NSWCATGD 10

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BLS [2017] NSWCATGD 10
Hearing dates:	13 April 2017
Date of orders:	13 April 2017
Decision date:	13 April 2017
Jurisdiction:	Guardianship Division
Before:	J Simpson, Senior Member (Legal) Dr S Pulman, Senior Member (Professional) M Williams, General Member (Community)
Decision:	1. The application by Ms GNG for a guardianship order to be made for Mr BLS is dismissed.
Catchwords:	GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – nominee – access to NDIS – need for order – application dismissed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 3(2), 14(1)
Cases Cited:	LBL NSWCATGD [2016] 22
Category:	Principal judgment
Parties:	Mr BLS (subject person) Ms GNG (applicant) The Public Guardian of NSW
File Number(s):	51649
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

What the Tribunal decided

1. We dismissed the application for a guardianship order.

Background

2. Mr BLS is a 61-year-old man who lives in a group home at West Sydney run by a disability service provider. Ms GNG, practice leader at the service provider, applied for a guardianship order.

3. Mr BLS does not have any involved family or friends from outside his support services.

What did the Tribunal have to decide?

4. We had to decide:

• Does Mr BLS have a disability which prevents him from being able to make some important life decisions?

• Should we make a guardianship order and if so, what order should we make?

5. To put (1) above more precisely using the words in the Guardianship Act 1987 (NSW), we had to be satisfied that Mr BLS has a disability which restricts him in one or more major life activities to the extent that he requires supervision or social habilitation, and that, as a result, he is at least partially incapable of managing his person. (Guardianship Act, sections 14(1), 3(1) (definition of “person in need of a guardian”), and 3(2))

Does Mr BLS have a disability which prevents him from being able to make some important life decisions?

6. Ms GNG said that the application had been prompted by the insistence of a National Disability Insurance Scheme (NDIS) local area coordinator (LAC) that Mr BLS should have a guardian to support him in the NDIS eligibility and planning process. The LAC had spent very little time with Mr BLS. A plan had then been issued by the NDIS for Mr BLS. While Mr BLS’s plan was comparatively satisfactory, he would benefit from more one-to-one support and the service provider was seeking a review of the plan.

7. General practitioner Dr Z provided a very brief report saying that Mr BLS needed a guardian because of his schizophrenia and associated intellectual disability.

8. However, there were more guarded reports of Ms Y, speech pathologist. Ms Y has been working with Mr BLS on his communication. He has difficulties with word finding and articulating words. However, he appears able to understand the majority of information. For more complex topics, he requires assistance in choice making.

9. Ms GNG is a social worker and has worked with Mr BLS for over five years. In the hearing, she said that she sees Mr BLS as able to make decisions in relation to his goals and other relevant NDIS issues.

10. When we spoke with Mr BLS, he showed obvious communication difficulties but also showed an understanding of questions asked by the Tribunal and said that he was able to make his own decisions. He said that people need to be patient when communicating with him.

11. In relation to his mental health, Mr BLS was able to tell us that he takes tablets for his mental illness and sees Dr X, psychiatrist. Ms GNG said that Mr BLS tells staff when he is feeling mentally unwell.

12. In LBL NSWCATGD [2016] 22, the submission of the National Disability Insurance Agency (NDIA) said, “Where a participant appeared unable to understand issues central to the development of a participant’s plan of supports, the NDIA would first consider whether the person could be supported to understand the situation and express their wishes.” The NDIA representative’s insistence on a guardianship application for Mr BLS seemed inconsistent with the agency’s considered submission in LBL.

13. Clearly Mr BLS has a communication impairment and needs support to make more complicated decisions. However, in view of the evidence from him, Ms GNG and Ms Y, we were not satisfied that he was unable to make important life decisions. To use the legal words in the Guardianship Act, we were not satisfied that Mr BLS is “partially incapable of managing his person”.

14. In these circumstances, we could not make a guardianship order. Mr BLS needs support and patience with decision making including in relation to the NDIS but he does not need a guardian.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar