CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION and DJC - [2011] WASAT 190

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION and DJC [2011] WASAT 190

MEMBER: MS S GILLETT (MEMBER)

HEARD: 27 JUNE 2011
WRITTEN SUBMISSIONS FILED 24 AUGUST 2011

DELIVERED : 25 NOVEMBER 2011

FILE NO/S: GAA 435 of 2011

BETWEEN: CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
Applicant
AND
DJC
Proposed represented person

Catchwords:

Guardianship and administration - Application for the appointment of a guardian - Represented person with severe cognitive impairment and multiple medical problems - Need for guardian - Less restrictive alternative to the appointment of a guardian to make treatment decisions - Person responsible - The meaning of the phrase 'primary provider of care and support ... but is not remunerated for providing that care and support'

Legislation:

Acts Amendment (Consent to Medical Treatment) Act 2008 (WA)
Acts Amendment (Consent to Medical Treatment) Bill 2006 (WA)
Disability Services Act 1993 (WA), s 12, s 24(1) Pt 4
Guardianship and Administration Act 1986 (Vic), s 37, s 37(2)
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 51, s 110ZD, s 110ZG, s 110ZJ, Pt 9, Div 3, s 119 (repealed)
Guardianship and Administration Act 2000 (Qld), s 14, Sch 4
Guardianship Act 1987 (NSW), s 3D, s 33A
Social Security Act 1991 (Cth), s 198
State Administrative Tribunal Act 2004 (WA), s 74, s 76

Result:

The application is dismissed

Category: A

Representation:

Counsel:

Applicant: Self-represented
Proposed represented person : Self-represented

Solicitors:

Applicant: Self-represented
Proposed represented person : Self-represented

Case(s) referred to in decision(s):

JD [2007] WASAT 80
XJ v Public Guardian [2006] NSW ADT 327

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Applications for guardianship and administration were made for a young man who was approaching 18 years of age and who had been under the care and protection of the State since infancy.
The relevant State authority that made the applications sought to have the young man's foster parents recognised as persons responsible to make treatment decisions on his behalf; or alternatively, sought the appointment of the Public Advocate as limited guardian to make treatment decisions.
The young man suffered from a severe cognitive impairment and multiple medical problems which arose from a 'nonaccidental' shaking injury sustained prior to coming into the care of the State authority and which required ongoing treatment and monitoring.
The young man had lived with his foster parents since infancy and the foster parents were committed to continuing to care for him and to make any necessary decisions about his lifestyle and welfare. The biological mother of the young man had no contact with him and had indicated that she wished to have no involvement in his life.
Due to the young man's significant disabilities and high care needs, the Disability Services Commission granted lifelong accommodation support funding which was paid to the foster parents to enable him to continue to reside with them.
The young man's foster parents did not propose their appointment as either the young man's administrator or guardian due to the funding policy of the Disability Services Commission which precluded payments being made to carers appointed as guardians and administrators.
The Tribunal decided that the appointment of an administrator was not necessary as the young man's modest estate was not at risk and was being well managed by his foster parents.
On being satisfied that the young man's foster parents were best placed to act on his behalf and that amended provisions of the Guardianship and Administration Act 1990 (WA) enabled his foster parents to make treatment decisions on his behalf in the absence of a guardianship order, the Tribunal decided to dismiss the application.

Background

These reasons relate to an application for a guardianship order in respect to DJC, a young man who had been in the care of the Department for Child Protection, until he attained the age of eighteen years in late June 2011.
The application for guardianship and administration orders is made by the Chief Executive Officer of the Department for Child Protection (DCP).
The applications were heard on 27 June 2011 and 12 August 2011. Both hearings were attended by CM, representing DCP, PC and LN, the former foster parents and current full time carers of DJC, and BT, the representative of the Public Advocate (Public Advocate). The first hearing was also attended by LI, DJC's child protection worker from DCP.
At the end of the first hearing, the Tribunal reserved the decision in respect to the application for guardianship and invited further written submissions from the applicant addressing the proposition that PC and LN be recognised as persons responsible to make treatment decisions for DJC. Those submissions were filed on 24 August 2011. The application for the appointment of an administrator was adjourned.
At the second hearing, the administration application was dismissed as the Tribunal found that the young man's needs were properly met by the existing arrangements and there was, therefore, no need for the appointment of an administrator of his estate. Oral reasons were given for this decision.
These reasons are provided pursuant to s 74 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in respect to the application for the appointment of a guardian for DJC. For the purpose of these reasons, I will refer to PC and LN as DJC's foster parents, albeit that this term inadequately portrays their relationship to him.

Relevant legislation

The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GAAct).
The following provisions of the GA Act are relevant in this matter:
4.       Principles stated
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of -
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
43.     Making of guardianship order
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40 -
(a)has attained the age of 18 years;
(b)is -
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c)is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint -
(d)a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(e)persons to be joint plenary guardians or joint limited guardians,
as the case may require, of the person in respect of whom the application is made.
110ZD.    Circumstances in which person responsible may make treatment decision
(1)If a patient is unable to make reasonable judgments in respect of any treatment proposed to be provided to the patient, the person responsible for the patient under subsection (2) may make a treatment decision in respect of the treatment.
(2)The person responsible for the patient is the first in order of the persons listed in subsection (3) who -
(a)is of full legal capacity; and
(b)is reasonably available; and
(c)is willing to make a treatment decision in respect of the treatment.
(3)For subsection (2), the persons are the following -
(a)the patient's spouse or de facto partner if that person -
(i)has reached 18 years of age; and
(ii)is living with the patient;
(b)the patient's nearest relative who maintains a close personal relationship with the patient;
(c)the person who -
(i)has reached 18 years of age; and
(ii)is the primary provider of care and support (including emotional support) to the patient, but is not remunerated for providing that care and support;
(d)any other person who -
(i)has reached 18 years of age; and
(ii)maintains a close personal relationship with the patient.
(4)For subsection (3)(b), the patient's nearest relative is the first in order of priority of the following relatives of the patient who has reached 18 years of age -
(a)the spouse or de facto partner;
(b)a child;
(c)a parent;
(d)a sibling.
(5)For subsection (3)(b) and (d)(ii), a person maintains a close personal relationship with the patient only if the person -
(a)has frequent contact of a personal (as opposed to a business or professional) nature with the patient; and
(b)takes a genuine interest in the patient's welfare.
(6)For subsection (3)(c)(ii), a person is not remunerated for providing care and support to the patient although the person receives a carer payment or other benefit from the Commonwealth or a State or Territory for providing home care for the patient.
(7)The person responsible for the patient cannot consent to the sterilisation of the patient.
(8)When making a treatment decision for the patient, the person responsible for the patient must act according to the person's opinion of the best interests of the patient.
(9)A treatment decision made by the person responsible for the patient has effect as if -
(a)the treatment decision had been made by the patient; and
(b)the patient were of full legal capacity.
110ZE.   Priority of treatment decision of person responsible
The priority to be given to a treatment decision of a person responsible for a patient under section 110ZD is determined in accordance with section 110ZJ.
Division 3 - Jurisdiction of State Administrative Tribunal
110ZF.   Who may apply
A person who, in the opinion of the State Administrative Tribunal, has a proper interest in the matter may apply to the Tribunal for a decision under this Division.
110ZG. Declaration that person responsible may make treatment
Decision
(1)The State Administrative Tribunal may declare -
(a)that a patient is unable to make reasonable judgments in respect of the treatment proposed to be provided to the patient; and
(b)that the person identified in the declaration is the person responsible for the patient under section 110ZD.
(2)A declaration made under subsection (1) has effect according to its terms.
(3)The Tribunal may revoke a declaration made under subsection (1).
110ZJ.   Order of priority of persons who may make treatment
decision in relation to patient
(1)Subject to sections 110ZI and 110ZIA, this section applies if a patient is unable to make reasonable judgments in respect of any treatment proposed to be provided to the patient.
(2)If the patient has made an advance health directive containing a treatment decision in respect of the treatment, whether or not the treatment is provided to the patient must be decided in accordance with the treatment decision.
(3)If -
(a)subsection (2) does not apply; and
(b)the patient has an enduring guardian who -
(i)is authorised to make a treatment decision in respect of the treatment; and
(ii)is reasonably available; and
(iii)is willing to make a treatment decision in respect of the treatment,
whether or not the treatment is provided to the patient must be decided by the enduring guardian.
(4)If -
(a)subsections (2) and (3) do not apply; and
(b)the patient has a guardian who -
(i)is authorised to make a treatment decision in respect of the treatment; and
(ii)is reasonably available; and
(iii)is willing to make a treatment decision in respect of the treatment,
whether or not the treatment is provided to the patient must be decided by the guardian.
(5)If -
(a)subsections (2) to (4) do not apply; and
(b)there is a person responsible for the patient under section 110ZD,
whether or not the treatment is provided to the patient must be decided by the person responsible.

The question of DJC's capacity

Before considering the need for a guardian, the Tribunal must first be satisfied that DJC has attained the age of 18 years; is incapable of looking after his own health and safety; is unable to make reasonable judgments in respect of matters relating to his person; or is in need of oversight, care or control in the interests of his own health and safety or for the protection of others (s 43(1)(a), s 43(1)(b), s 43(2a)(a) and s 43(2a)(b) of the GA Act).
The applicant provided the following information about DJC's history and his present impairment:
DJC came to the attention of DCP at 6 weeks of age following his admission to hospital in a semi-comatose state. He was found to be suffering symptoms consistent with 'shaken baby syndrome'; gross cerebral oedema, inter-cerebral haemorrhage and subarachnoid haemorrhage. Since entering DCP's care, DJC has been diagnosed with permanent physical and intellectual disabilities and epilepsy that require constant supervision. Due to his intellectual disability, DJC is unable to follow instructions or to converse with others and he requires the assistance of his carers to attend to all of his day to day needs including feeding, washing, toileting, communication and community access.
Dr LN, DJC's treating neurologist, provided a report which confirms both DJC's severe cognitive and multiple physical impairments and his total dependence for all aspects of his care. KP, Local Area Coordinator with Disability Services Commission (DSC) who says that he has known DJC and his foster family for 13 years, states that DJC is unable to express his needs apart from wailing and flaying his arms, and that only his foster parents can interpret this behaviour.
There is no dispute amongst the parties as to the severity of DJC's cognitive impairment and I am satisfied on the evidence that DJC is manifestly a person for whom a guardian may be appointed, in that all of the requirements of s 43(1)(b) of the GA Act are met.

Is DJC in need of a guardian?

The applicant submits that whilst DJC is wholly unable to make any informed decisions for himself, the only need for a guardian arises in relation to medical treatment decisions. All other decisions are made by his foster parents, who have been his full time carers, since shortly after he came into the care of DCP as an infant. Prior to the expiry of his wardship at the age of 18 years in June 2011, formal parental authority for DJC rested with DCP.
The applicant contends that DJC has had no contact with his biological mother since coming into care and DCP submits a letter sent to the Department by DJC's biological mother, dated 7 February 1996, stating that she did not wish to have any involvement in his life.
DJC's foster parents advise the Tribunal that they wish to make treatment decisions for DJC, in addition to decisions concerning the provision of services to DJC. In particular, PC, DJC's foster mother, says that she has an intimate knowledge of DJC's complex healthcare needs and that she has developed a close working relationship with the healthcare professionals involved in his care, including his neurologist, dietician, physiotherapist and orthopaedic surgeon. PC says that she cares for DJC in the same way as she did for her biological children and she sees no need for or benefit in the Public Advocate being appointed to make treatment decisions for DJC.
The applicant recognises that whilst formal consent for medical treatment was required to be given by DCP until DJC attained 18 years of age, his foster parents and in particular, his foster mother, PC, was closely involved in all decisions concerning DJC's healthcare throughout the period that DJC has been in her care.
Whilst PC and LN, DJC's foster parents, wish to make treatment decisions on his behalf, they are not willing to be formally appointed as his guardians due to the effect that this may have on their ability to continue to provide care for DJC. The applicant submitted that for DJC's foster parents to be able to continue to provide care for him, ongoing financial support was required and that the funding of this financial support would be jeopardised if PC and LN were to be appointed as DJC's guardians. The applicant provided the following information in respect to the funding of DJC's care.
As set out in the Leaving Care Plan prepared by DCP and submitted to the Tribunal, the Department made application to DSC for accommodation support funding to enable DJC to remain in the care of his foster parents. In the letter to DCP confirming the allocation of funding to DJC, DSC states:
The amount of support to be allocated will be equivalent to that already being met by [DCP] and will be developed within the framework of the Commission's policies and principles.
Under the funding arrangement described as 'Accommodation and Support Funding under the Alternate Care Model', the applicant states that:
[DSC] funding is allocated to [DJC] for life and is portable in that should he have to leave his current placement that funding will be available to obtain alternative accommodation.
The applicant states that DSC appointed Perth Home Care Services (PCHS) to manage the funding allocated to DJC on DCP's recommendation and that PHCS 'had no involvement in the decision for [PC] and [LN] to continue in their role as [DJC]'s carers and their day to day involvement in [DJC]'s care is limited'.
DCP referred to DSC's 'Family Members as Paid Carers' policy, which precludes the allocation of Accommodation and Support Funding approved for a person being used for a 'family member', the definition of which includes legal guardians and administrators. DCP contends that if DJC's foster parents were to be appointed his guardians, they would be precluded from receiving any of the DSC funding allocated to DJC.

The Public Advocate concurs with DCP's view that all decisions, other than medical treatment decisions, are able to be dealt with on an informal basis by DJC's foster parents. The Public Advocate submits that the foster parents 'have shown a significant commitment to [DJC]'s emotional and financial well-being since a very young age and are willing and able to do so into the foreseeable future'.
The Public Advocate further submits that DJC's foster parents are best placed to make treatment decisions for DJC and that if PC and LN were recognised under s 110ZD of the GA Act as the 'person responsible', the Public Advocate is satisfied this arrangement would operate in DJC's best interests.

Applicant's written submissions post hearing

In support of the view that PC and LN are not excluded as 'persons responsible' for making treatment decisions by virtue of being remunerated for the care and support that they provide to DJC, the applicant submits:
•DJC has been allocated lifelong DSC funding that enables him to continue to reside with PC and LN since he left the care of DCP at 18 years of age. DSC appointed PHCS to manage the funding allocated to DJC. PHCS had no involvement in the decision for PC and LN to continue in their role as DJC's carers.
•PHCS describes the payment made to the PC and LN as '... reimbursement for the care of DJC. This is a tax exempt payment, not a wage or salary. Our definition of a care reimbursement is that it is a payment to acknowledge the supervision, training and support and assistance provided by a carer to the person. The payments are nontaxable reimbursements and the alternate family carers are not in an employer/employee relationship with PHCS'.
•The Australian Tax Office (ATO) wrote to DSC in December 1998 in relation to DSC funding, referred to as 'total care subsidies' paid to foster parents for the care of disabled young adults, and stated: 'We can confirm that the total care subsidies paid to individuals and families who provide foster care in their own homes are not income and therefore not assessable. However payments received by people in the business of providing foster care, irrespective of whether long or short term, will remain subject to income tax'. Whilst the term used to describe the payment made to carers by DSC varies, the applicant contends that the reference to 'total care subsidies' equates with the payments being made to PC and LN for DJC's care.
•In May 2000, the then CEO of PHCS sought clarification from the ATO as to whether the payments made to persons who provide either weekend care or five day per week care in their home for an adult with a disability would be viewed as assessable income, and the ATO confirmed that payments in both instances would be viewed as compensation for 'additional expense, stress, upheaval and disruption to normal family life' and consequently not assessable income for income tax purposes.

The Tribunal's findings and determination in respect of the need for a guardian

For the appointment of a guardian to be made, the Tribunal must first be satisfied that the proposed represented person is in need of a guardian (s 43(1)(c) of the GA Act). The determination of need is subject to the principles set out earlier. Of particular relevance in this matter is whether the needs of DJC are able to be met by other less restrictive means.
I am satisfied that all decisions, other than medical treatment decisions, are able to be made on an informal basis by DJC's foster parents. However, should his living arrangements change in the future, a formal guardianship order may be required.
I am further satisfied on the evidence before me that DJC's interests are best served if decisions concerning his healthcare and medical treatment are made by PC and LN, his foster parents. I accept the submissions made by DCP and the Public Advocate as to the significant commitment and care provided to DJC by his foster parents throughout the last 18 years, and the foster parents' willingness and ability to continue their care of and commitment to DJC into the foreseeable future.
The crucial issue to be determined is whether DJC's foster parents are able to make treatment decisions for DJC in the absence of a guardianship order appointing them with this authority. If they cannot make treatment decisions for DJC and they do not seek appointment as guardians, this leaves no option but to appoint the Public Advocate as limited guardian with this function.
The provisions in the GA Act concerning who is able to make treatment decisions on behalf of a person unable to make such decisions for themselves were substantially amended by the Acts Amendment (Consent to Medical Treatment) Act 2008 (WA) (No 25 of 2008), which came into effect on 15 February 2010.
Under the amended provisions, the order of priority of persons who may make treatment decisions in relation to a person who is unable to make reasonable judgments about any proposed treatment is set out in s 110ZJ of the GA Act, which provides that, in the absence of a person having an advance health directive, an enduring guardian or an appointed guardian, a decision as to whether or not treatment is provided 'must be decided by the person responsible'. This provision is necessarily subject to whether there is someone who can be recognised as the person responsible in the particular instance.
Section 110ZD(2) and s 110ZD(3) of the GA Act set out who may be 'the person responsible' for making treatment decisions and the hierarchy which is used to determine the person responsible.
Under s 110ZD(3) of the GA Act, 'the patient's nearest relative who maintains a close personal relationship' is higher in order of priority than the person who 'is the primary provider of care and support ...'.
However, s 110ZD(3)(c) of the GA Act is the relevant subsection in this matter as DJC does not have a 'nearest relative' who maintains a close personal relationship with him.
As set out earlier, PC and LN receive payment from the 'Accommodation and Support Funding' allocated to DJC by DSC and managed through PHCS for their care of DJC. If the payment received by DJC's foster parents is remuneration pursuant to s 110ZD(3)(c)(ii) of the GA Act, then PC and LN would be precluded from being the 'person responsible'.
Thus, in this matter, it is necessary to determine whether PC and LN, as primary providers of care and support to DJC, are 'not remunerated for providing that care and support'. Subsection 110ZD(6) of the GA Act provides further clarification of the meaning of remuneration for the purposes of this section and states:
For subsection (3)(c)(ii), a person is not remunerated for providing care and support to the patient although the person receives a carer payment or other benefit from the Commonwealth or a State or Territory for providing home care for the patient.
The Explanatory Memorandum for the Acts Amendment (Consent to Medical Treatment) Bill 2006 (WA) sets out that 'The scheme in clause 110ZD is similar to that in the current section 119 of the Act but, for the purposes of statutory consistency, clarifies the identity and authority of persons responsible'.
In seeking to clarify the identity and authority of the 'person responsible' as expressed in the Explanatory Memorandum, it is implicit in the amended provisions that the nature of the relationship between the primary carer and the patient is characterised by a genuine interest in the patient's welfare, as is explicitly required for a 'nearest relative' (s 110ZD(3)(b) of the GA Act) and for 'any other person' (s 110ZD(3)(d) of the Act).
Section 119 of the GA Act, which was repealed at the time that s 110ZD was inserted, set out who could consent to treatment on behalf of a person who was incapable of providing consent and the circumstances in which this was required. The equivalent provision to s 110ZD(3) of the GA Act was contained in s 119(3) of the Act, which stated:
For the purposes of subsections (1) and (2), the person who may consent to treatment is the first in order of priority of the following persons -
(a)a guardian of the person needing the treatment;
(b)the spouse or de facto partner of the person needing the treatment;
(c)a person who, on a regular basis, provides or arranges for domestic services and support to the person needing the treatment but does not receive remuneration for doing so;
(d)a person who is the nearest relative (other than the spouse or de facto partner) of the person needing the treatment and who maintains a close personal relationship with the person needing the treatment;
(e)any other person who maintains a close personal relationship with the person needing treatment; or
(f)a person prescribed in the regulations.
The Tribunal has considered applications under the repealed provision (s 119 of the GA Act) which involved similar facts. In JD [2007] WASAT 80, the Tribunal found at [32] that the foster parents were precluded under s 119(3)(d) of the GA Act from the hierarchy of persons who could consent to treatment due to their receipt of a 'carer allowance', which was elsewhere in the decision described at [20] as 'a carer payment from DSC'.
The Tribunal notes that the amendment of this provision in the GA Act results in the following:
•The variation of the order within the hierarchy such that the 'nearest relative' now sits above the 'primary provider of care and support'.
•The substitution of 'a person who, on a regular basis, provides or arranges for domestic services and support' with 'the primary provider of care and support (including emotional support)'.
•The insertion of the provision which clarifies what is meant by 'not remunerated' and which excludes particular payments in particular circumstances.
•The inclusion of an express obligation on the 'person responsible' to act according to their opinion of the best interest of the patient (s 110ZD(8) of the GA Act), consistent with the obligations of an appointed guardian as set out in s 51 of the Act.
Further s 110ZG of the GA Act now provides that the Tribunal may make a declaration identifying the 'person responsible' for a patient under s 110ZD, whereas no such provision was contained in the Act prior to the legislative amendments contained in the Acts Amendment (Consent to Medical Treatment) Act 2008 (WA) (No 25 of 2008).
Whilst the Second Reading Speech by the then Attorney General, the Honourable Jim McGinty, provides little further assistance as to the particular payments that were intended to be excluded as remuneration, the language of s 110ZD(6) of the GA Act is not tortuous. Section 110ZD(6) of the Act allows a person, who is the primary provider of care and support, not to be excluded from making treatment decisions for a patient by virtue of that person being in receipt of a payment from the State of Western Australia for providing home care for the patient.
The Disability Services Act 1993 (WA) (DS Act) establishes the Disability Services Commission, and the functions of the Commission set out in s 12 of this Act include 'to make grants under Part 4 and to ensure that the use of grants is accounted for to the Commission'. Section 24(1) in Pt 4 of the DS Act provides that DSC may approve a grant of assistance to 'a person with a disability', which, the applicant submits, has been granted to DJC.
The term 'carer payment or other benefit' is not defined in the GA Act; however, reviewing the use of this term in other legislative provisions is of some assistance.
The Social Security Act 1991 (Cth) (SS Act) uses the term 'carer payment' to describe income support payments made to people who, because of the demands of their caring role, are unable to support themselves through substantial paid employment (s 198 of the SS Act). It is not unreasonable to conclude that the term 'carer payment' in the GA Act at a minimum includes carer payments made under the provisions of the SS Act.
The definition of 'benefit' in The Macquarie Dictionary (4th ed, 2005) includes 'payment or other assistance given by an insurance company, mutual benefit society, or public agency'. Thus even if the term 'carer payment' were to be construed narrowly to mean payments made under the provisions of the SS Act, 'other benefit' may be taken to include a payment such as the payments from DSC received by DJC's foster parents.
In XJ v Public Guardian [2006] NSW ADT 327, Deputy President Hennessey states:
The Guardianship Act [in NSW] is beneficial legislation and should be interpreted so as 'to give the fullest relief which the fair meaning of its language will allow': Bull v AttorneyGeneral (NSW) [1913] HCA 60; (1913) 17 CLR 370 at 384 per Isaacs J.
The GA Act similarly should be construed liberally. The amended provisions in s 110ZD of the Act do not narrowly define the payments that are excluded as remuneration as in the Guardianship Act 1987 (NSW) which contains a similar provision that includes 'a person who has the care of the person' in the hierarchy from whom the 'person responsible' is to be ascertained (s 33A of the Act); however, in s 3D of the Act, a person who provides or arranges domestic services and support 'for remuneration' is excluded and the section further states 'remuneration does not include a carer's pension'.
In related provisions, the Guardianship and Administration Act 2000 (Qld) (Queensland Act) excludes the appointment of a person who is a 'paid carer' (for the adult concerned) as either guardian or administrator for that adult (s 14 of the Queensland Act). The definition of 'paid carer' in Sch 4 of the Queensland Act refers to the person being in receipt of remuneration for the services provided other than:
(i)a carer payment or other benefit received from the Commonwealth or a State for providing home care for the adult; or
(ii)remuneration attributable to the principle that damages may be awarded by a court for voluntary services performed for the adult's care.
The Queensland Act, however, as in the GA Act, does not define the term 'carer payment or other benefit'. It is noted that the provisions in the Queensland Act also exclude the appointment of a patient's nearest relative as guardian or administrator should they come within the definition of a 'paid carer', whereas the GA Act provides no such exclusion.
The related provisions in the Guardianship and Administration Act 1986 (Vic) (Victorian Act) set out who may be 'the person responsible' for making treatment decisions for an incapable person (s 37 of the Victorian Act) and include the 'patient's primary carer' in the hierarchy of persons from whom the 'person responsible' is to be ascertained. Further clarification as to what constitutes 'primary carer' is provided in s 37(2) of the Victorian Act, which states:
The circumstances in which a person is to be regarded as having the care of a patient include, but are not limited to, the case where the person, other than wholly or substantially on a commercial basis, regularly
(a)provides domestic services and support to the patient; or
(b)arranges for the patient to be provided with domestic services and support. (Emphasis added)
Thus, as the term 'carer payment or other benefit' is not defined in the GA Act or in related legislation; there is little guidance as to the intent of the legislators; and there is a dearth of case law which may provide guidance as to the meaning to be ascribed to this term, the ordinary meaning of the words must be used.

Conclusion

I find that the accommodation support funding paid to DJC's foster parents is a payment for providing home care of DJC. Further, I am satisfied that the payment received by DJC's foster parents is in the nature of a 'carer payment or other benefit' of the sort contemplated by the GA Act. I find that the payment received by DJC's foster parents from the State through the DSC, and that the administration of the funding by PHCS does not negate the fact that the payment derives 'from the State'. As such, I am satisfied that the foster parents, PC and LN, are not excluded from making treatment decisions for DJC as the person responsible.
I find that this is a less restrictive alternative to the making of a guardianship order and that it is in DJC's best interests that treatment decisions are made for him by his foster parents. Therefore, I find that there is no need for a guardian to be appointed.
Should there be any ambiguity or lack of clarity as to who is authorised to make treatment decisions on DJC's behalf, application may be made under Pt 9C Div 3 of the GA Act for a declaration under s 110ZG of the Act to identify the person responsible.

Order

1.The application is dismissed.

I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS S GILLETT, MEMBER