BSE
[2016] NSWCATGD 50
•14 October 2016
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BSE [2016] NSWCATGD 50 Hearing dates: 14 October 2016 Date of orders: 14 October 2016 Decision date: 14 October 2016 Jurisdiction: Guardianship Division Before: J Simpson, Senior Member (Legal)
Dr C West, Senior Member (Professional)
B Epstein-Frisch, General Member (Community)Decision: Guardianship
Financial Management
1. A guardianship order is made for Mr BSE.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 18 months from the date of this order.
4. This is a limited guardianship order giving the guardian custody of Mr BSE to the extent necessary to carry out health care, medical and dental consent and services functions.
1. The hearing of these proceedings (Financial Management Application) is adjourned for approximately 18 months to a date to be fixed by the Registrar.Catchwords: GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – need for an order – no family or advocate – NDIS first and second planning processes – transfer of Ageing, Disability and Home Care ADHC accommodation service to non-government sector – Public Guardian appointed
FINANCIAL MANAGEMENT – application for financial management order – application adjournedCategory: Principal judgment Parties: Mr BSE (subject person)
Mr KPO (applicant)
The NSW Public Guardian
The NSW Trustee and GuardianFile Number(s): 6168 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
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The Tribunal made a guardianship order for 18 months appointing the Public Guardian to make decisions for Mr BSE about services and health issues.
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The Tribunal adjourned the application for a financial management order for 18 months.
Background
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Mr BSE is a 40-year-old-man with an intellectual disability who lives in an Ageing, Disability and Home Care (ADHC) group home at northern Sydney. With Mr BSE not having involved family or an advocate to support him with the National Disability Insurance Scheme (NDIS), Mr KPO, key worker, applied for a guardianship order. Mr KPO also applied for a financial management order.
Guardianship
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The Tribunal had to decide:
Does Mr BSE have a disability which prevents him from being able to make some important life decisions?
Should the Tribunal make a guardianship order and if so, what order should be made?
Who should be the guardian?
How long should the order last?
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From the evidence provided by ADHC, the Tribunal accepted that Mr BSE has an intellectual disability and major communication impairment so that he is unable to make major life decisions.
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Mr BSE needed a guardian to safeguard’s his interests through the very important current processes of NDIS transition and transfer of his accommodation service to a non-government provider.
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Mr KPO said that he has had two phone consultations with the NDIS in relation to Mr BSE’s needs.
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From the documentary evidence and the discussion in the hearing, important issues to be considered for Mr BSE include:
Increased individualised outings;
A change of day program. Mr BSE currently goes to a group home but Mr KPO felt that the environment was too noisy there and Mr BSE does not get enough individual attention. A possible desirable alternative is another disability support service provider also at northern Sydney;
A review of whether improved communication systems can be established with Mr BSE;
Advice from a behaviour support practitioner or psychologist in relation to strategies to address Mr BSE’s ongoing problem with depression.
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Mr BSE has a range of health care needs and has an antidepressant and antipsychotic medication prescribed by Dr Z who, Mr KPO said, has diagnosed him with depression.
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The Tribunal made a guardianship order covering services and health decisions.
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The Tribunal appointed the Public Guardian.
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Mr BSE has a permanent disability and needs a guardian at least through his first and second NDIS plans and the tendering out of his accommodation to a non-government provider. The Tribunal make the guardianship order for 18 months.
Financial management
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The Tribunal had to decide:
Is Mr BSE incapable of managing his affairs?
Is there a need for another person to manage Mr BSE’s affairs and is it in his best interests for a financial management order to be made?
If so, who should be appointed financial manager?
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In the hearing, Mr KPO said that Mr BSE has a cheque account containing about $4500 and a term deposit of $5000. These accounts are in Mr BSE’s names with two staff members to sign on them.
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The group home team leader was concerned to find that sometimes blank cheques are signed when a staff member will be on holidays and said that she would fix the situation by having a third signatory on the account. She also said that as team leader, she checks Mr BSE’s petty cash balances and reconciles his money against the monthly bank statements. She felt the current system was working satisfactorily but the application had been made because of the uncertainty surrounding transfer of the service to a non-government provider.
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The Tribunal decided it would be premature to decide whether to make a financial management order when Mr BSE has quite modest savings and there is no evidence that a non-government provider will not be able to maintain satisfactorily informal systems.
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The Tribunal adjourned the matter for up to 18 months. It can be heard earlier if needs be. Otherwise, the Tribunal will again consider the matter at the review of the guardianship order.
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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
Decision last updated: 16 March 2017
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