BQC - Guardianship
[2018] TASGAB 16
•3 August 2018
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
BQC - Guardianship
Statement of Reasons
Louise Mollross (Chair)
Angela McKenzie (Member)
Carolyn Wallace (Member)
Hearing 3 August 2018
What the Board decided
On the 3rd of August 2018, the Guardianship and Administration Board (The Board) heard an Application for Guardianship for BQC (the Proposed Represented Person). The application was filed by Mr Raphael Sauvage of In2Change Consultancy, who is the BQC’s coordinator of supports, appointed under the National Disability Insurance Scheme (NDIS).
As a result of the hearing, the Board was satisfied that BQC is a person with a disability and is unable because of that disability to make reasonable judgements in respect of his person and circumstances, and is in need of a Guardian limited to advocating and/or making any decisions in respect of any NDIS plan development, plan implementation and/or plan review or appeal.; and determine and provide consent to the provision of services.
The full details of the Order appear at the end of this Statement of Reasons.
The Office of the Public Guardian has requested a Statement of Reasons in relation to the Board’s decision.
Background
BQC is aged 32 years and resides in supported disability accommodation and receives support for his care from Hobart City Mission.
BQC is subject to an Administration Order where the Public Trustee is appointed as his administrator.
The Hearing
The following persons attended the Hearing:
(a)Mr Raphael Sauvage, applicant;
(b)Ms Liz Love from the Office of the Public Guardian;
(c)Ms Rhiannon Crowe (Hobart City Mission); and
(d)DE (student on placement)
In determining the matter, the Board had the following documentation before it:
(a)Application for Guardianship filed by Mr Raphael Sauvage on the 12th of July 2018;
(b)Health Care Professional Report from Doctor Robert Blakesley dated the 7th June 2018;
(c)Public Trustee annual account 2017; and
(d)Copy of an Administration Order made by the Guardianship and Administration Board of the 9th of December 2016
Requirements of the Guardianship and Administration Act (1995)
When the Board assesses an application for the appointment of a Guardian it needs to be satisfied of the matters in section 20 of the Guardianship and Administration Act 1995 (the Act), that the PRP:
(a)is a person with a disability; and
(b)is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating his person or circumstances; and
(c)is in need of a Guardian.
10. The Board must also balance the principles in section 6 of the Act, which include:
·That the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and
·The best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
·The wishes of a person with a disability or in respect of whom an application is made under this Act are if possible, carried into effect.
Is the PRP a person with a disability?
11. Dr Robert Blakesley provided a Healthcare Professional Report dated the 7th of June 2018. Dr Blakesley reported that BQC does have an intellectual disability namely of developmental delay, which has been in existence since birth and which is static.
12. Dr Blakesley’s evidence was unchallenged at the hearing and no other medical evidence was provided to the Board. The Board is satisfied that BQC is a person with a disability within the meaning of the Act.
Is the PRP incapable by reason of his disability of making reasonable judgements in respect of all or any matters relating to his person or circumstances and/or matters relating to all or any part of his estate?
13. In the same report noted above, Dr Blakesley indicated that BQC is not able to make any such decisions. Dr Blakesley further confirmed that the disability affects BQC’s ability to make reasonable decisions, and that BQC is not able to make reasonable decisions in relation to himself.
14. Dr Blakesley advised that BQC experiences deficits in particular areas by reason of his disability, those areas being:
(a)orientation to person, place or time;
(b)expressive communication;
(c)receptive communication;
(d)impulse control;
(e)capacity for new learning;
(f)susceptibility to influence; and
(g)planning and reasoning skills.
15. Dr Blakesley also advises that the consequences of not appointing a Guardian for BQC is that there is potential for abuse and that BQC would be unsafe. As detailed above, Dr Blakesley’s evidence was unchallenged at the hearing.
16. The Board is satisfied that BQC is incapable by reason of his disability of making reasonable judgments about his person and circumstances, but particularly in relation to decisions concerning the NDIS, including his NDIS plan, delivery of services, selection of service providers and other decisions required. The Board is satisfied that BQC would not be able to prospectively look at decisions and appreciate the consequences that would flow from choosing one option over the other. That system of getting hold of information, analysing the information, formulating options, evaluating options and appreciating consequences is a higher level of reasoning, and as such, on the evidence before the Board, BQC would not be able to engage in that process.
Is the PRP in need of a Guardian?
17. Section 20 of the Act provides that the Board may make a guardianship order for a person if it is satisfied that he/she is “a person in need of a guardian.”
18. The Board received evidence at the hearing that BQC was a participant in the NDIS Scheme and a plan was completed in November 2017. The plan is for a period of twelve (12) months. BQC’s current NDIS plan is due for review in October 2018 and a new plan would need to be completed before the existing plan expired.
19. The National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) requires that the CEO of the NDIA must facilitate the preparation of a plan in accordance with the NDIS rules for each participant in the NDIS (section 32 of the NDIS Act). The plan must include a statement of the participant’s goals and aspirations and a statement of the participant’s supports (section 33 NDIS Act). Section 31 contains the principles relating to plans which include inter alia:
· The plan be individualised and directed by the participant;
· Where relevant, consider the role of family, carers, and other significant persons; and
· Be underpinned by the right of the participant to exercise choice and control
20. The Applicant contended that a need existed for the appointment of a guardian to address NDIS issues arising from PRP’s participation in the NDIS Scheme. BQC’s current NDIS plan is managed by In2Change Consultancy with whom the applicant is employed. The applicant also stated importantly that given he is a service provider/contractor for the NDIS, he therefore has a clear conflict in the planning process.
21. The applicant gave evidence that BQC does not have family or any other person in his life who is able to advocate on his behalf. The applicant stated that BQC is not verbal and would not be able to engage with or express his wishes to an advocate, and hence no advocate has been involved. The applicant submitted it would be of benefit to have the Public Guardian advocating for and representing BQC in the second NDIS planning process.
22. Ms Love of the Office of the Public Guardian opposed the making of an order and made the following submissions;
22.1There was no need for the appointment of a substitute decision maker. She advised that as the Public Trustee has been appointed Administrator, that it would sign service agreements and she had confirmed that with the Public Trustee.
22.2That it was the Office of the Public Guardian’s position that the coordinator of supports is the person who would continually be involved in determining an individual’s needs by way of support and would have a much better idea what those supports are than the Guardian.
22.3That while she accepted that BQC was a person with a profound disability, and “while she is not a Guardian who shirks work, it is about what a Guardian can provide and who that Guardian should be.”
22.4That she believes the NDIS is a “failsafe” guard for persons with disabilities.
22.5That as a Guardian, Ms Love would not oversee the coordination of the plan, the Office of the Public Guardian would simply be a “rubber stamp”. She stated “just a rubber stamp that is my expectation. I do not have the training in fiduciary management and would not pick up any anomaly in funding.”
22.6That because the plan is established and existing, those who know what is best for BQC are those working with him on a daily basis.
22.7The addition of a new person involved would not add anything further for BQC because she states “I would take advice from those closest to him.”
22.8There is no net gain for the appointment of a Guardian. The scope of the plan does not change, it would be similar to what we call a settled administration.” BQC has a ten (10) year Order for Administration
Determination
23. On the evidence before the Board, the Board was satisfied there is a need for a Guardian.
24. The Board follows the same reasoning as set out in TOU [2018] TASGAB 1 at paragraph 16 and then paragraph 23.
[16] TOU’s disability clearly prevents her from being able to make major decisions such as those involved in NDIS planning. Further, TOU has no person to support her or advocate for her through the planning process and she has no way in making her wishes known. TOU has not had the benefit of a guardian advocating on her behalf in the development of the NDIS plan and its implementation and providing appropriate support.
[23] There may be areas of support that have not been clearly considered in the current plan that will need to be considered in the second and future plans. There needs to be the selection of services that are the subject of the funding and an independent mind needs to be brought to this process. I am satisfied that these are decisions that TOU cannot make herself or with advocacy support, due to her impaired decision making capacity. TOU has complex needs and it is very important that she have someone to advocate for her and make decisions throughout this process.
25. The Board also refers to the decision of SLRT [2017] QCAT 92 which assists in outlining the role of a guardian in these type of matters.
[20]... It is clear from the evidence that a range of decisions are required in the very near future. SLRT has been registered and enrolled in the NDIS. She has undergone the planning session and a plan has been provided. It is obvious that the plan will meet most of the immediate goals and objectives relating to support for SLRT, but it’s not also difficult to see that there might be other areas of support that have not been clearly considered in the current plan. I’m satisfied that even if the current plan is adequate, there needs to be the choice and the implementation of a coordinator. There needs to be the purchase or the selection of services that are the subject of the funding, and then the ongoing need to be involved in ensuring that the plan is adequate on an ongoing basis, and, in future years, that any modifications or additions to the plan reflect the realistic goals and needs of SLRT. I’m satisfied those decisions are decisions that SLRT cannot make herself, due to her impaired decision-making capacity.
[21] Lastly, on the evidence before me, SLRT cannot engage with an advocate, so, therefore, cannot be supported through that means in reaching her own decisions about who should be providing services, what those services are, and how the funding is used in relation to those services. I’m satisfied that in her case, in SLRT’s case, there is an absence of informal decision-making support.
26. The Board determines a guardian is needed to ensure BQC receives the advocacy and support required to ensure that he obtains the optimal provision of services that fully meet his individual needs in the preparation and implementation of future plans with the NDIS. BQC has complex needs and it is very important that he have someone to make independent decisions throughout the planning process and then through the process of implementing of the plan. The Board accepts the evidence provided by the applicant that a Guardian should be involved in the pre-planning stage when individuals who lack decision making capacity are involved, and who are unable to express their wishes and exercise choice and control through family, advocacy or other informal support.
27. While there is a current plan in place, there may be areas of support that have not been considered in the current plan that may need to be considered in the second and in any future plans. A plan should never be seen as “settled” but vigorously reviewed to ensure it meets a participants changing needs and is ultimately in the best interest of that person.
28. There is also a need for a guardian to determine the selection of service providers. The Applicant is correct in stating that he is conflicted in being BQC’s substitute decision maker, given a co-ordinator of supports is funded through a participant’s NDIS plan. It is essential to the selection of services that are the subject of the funding that an independent assessment needs to be brought to the process, not conflicted by funding requirements.
29. It is clear that a substitute decision maker is required to sign the service agreements. The Board heard evidence that the Public Trustee as administrator is willing to perform this role. If this is the case, then obviously a guardian does not need to perform this role.
30. On a different note, the Board heard evidence from Ms Crowe of the Hobart City Mission that there may in the future be some need for a Guardian to be involved in the making of medical decisions. It was clear that at the time of the hearing that this was not required, and therefore the least restrictive approach was to not appoint a Guardian for this purpose.
Conclusion
After hearing an Application for Guardianship in respect of BQC, the Board was satisfied that the represented person:
(a)is a person with a disability;
(b)is unable by reason of the disability to make reasonable judgments in respect of his person and circumstances; and
(c)is in need of a limited Guardian.
THE BOARD ORDERS:
1. That the Public Guardian be appointed as BQC’s guardian.
2. That the powers and duties of the guardian are limited to decisions concerning;
i.advocating and/or making any decisions on BQC’s behalf in respect of any NDIS plan development, plan implementation and/or plan review or appeal.; and
ii.determine and provide consent to the provision of services which BQC should have access.
3. That the order remains in effect to 2 August 2021.
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Louise Mollross
27 August 2018
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