CZX

[2020] NSWCATGD 29

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CZX [2020] NSWCATGD 29

Hearing dates:

28 September 2020

Date of orders:

28 September 2020

Decision date:

28 September 2020

Jurisdiction:

Guardianship Division

Before:

S G McCarthy, Senior Member (Legal)
Dr I L Beale, Senior Member (Professional)
E A Pickering, General Member (Community)

Decision:

1. A guardianship order is made for CZX.

2. SZX of [address removed for publication] and TZX of [Address removed for publication.] are appointed jointly as the guardians.

3. This is a continuing guardianship order for a period of one year from 28 September 2020.

4. This is a limited guardianship order giving the guardian(s) custody of CZX to the extent necessary to carry out the functions below.

FUNCTIONS: SZX and TZX

5. SZX and TZX have the following functions:

a) Services

To make decisions about services to be provided to CZX.

b) Restrictive Practices

To give or withhold consent as to whether the following restrictive practices should be used to influence CZX’s behaviour:

1. Chemical restraint

2. Environmental restraint

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring CZX to an understanding of the issues and to obtain and consider his views before making significant decisions.

b) Restrictive Practices Condition

The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence CZX’s behaviour:

(i) as a last resort to prevent CZX harming himself or others; and

(ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon CZX, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

Financial Management

The application for financial management is dismissed after hearing.

Catchwords:

GUARDIANSHIP – application for a guardianship order – standing – whether Life Without Barriers has standing to bring an application for a guardianship order - whether applicant has a “genuine concern” for the welfare of the subject person – standing established – whether a guardianship order should be made – need for decision making about services - need for decision making about the use of restrictive practices - chemical restraint – environmental restraint – private guardians jointly appointed – order made.

FINANCIAL MANAGEMENT – application for a financial management order – standing whether Life Without Barriers has standing to bring an application for a Financial management order – whether applicant has a “genuine concern” for the welfare of the subject person – subject person incapable of managing their own affairs – informal decision making arrangements meeting subject person’s needs – no need for an order – application dismissed.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 17(1), 33A

Interpretation Act 1987 (NSW), s 21

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)

CJ v AKJ [2015] NSWSC 498

EBI [2017] NSWCATGD 6

IF v IG [2004] NSWADTAP 3

McD v McD (1983) 3 NSWLR 81

NEJ [2017] NSWCATGD 1

P v NSW Trustee and Guardian [2015] NSWSC 579

Re B [2011] NSWSC 1075

Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106

Texts Cited:

Nil

Category:

Principal judgment

Parties:

008: Guardianship Application

CZX
Life Without Barriers (applicant)
TZX (carer, proposed guardian)
SZX (carer, proposed guardian)
Public Guardian

009: Financial Management Application

CZX
Life Without Barriers (applicant)
TZX (carer, proposed financial manager)
SZX (carer, proposed financial manager)
NSW Trustee and Guardian

Representation:

Nil

File Number(s):

NCAT 1997/00067590

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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

GUARDIANSHIP APPLICATION

What the Tribunal decided

1. The Tribunal appointed TZX and SZX as the joint guardians for CZX for a period of one year to make decisions about his services and restrictive practices being chemical restraint and environmental restraint as set out in the Tribunal’s order.

Background

2. CZX is 40 years of age and resides in supported accommodation in regional NSW, which is managed by Life Without Barriers. CZX’s family includes his parents, TZX and SZX. Life Without Barriers made an application for guardianship concerning CZX.

The hearing

3. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

Does Life Without Barriers have standing to bring the application?

4. A person has standing to bring an application if he or she is:

1. The person who is the subject of the application

2. The Public Guardian or

3. Any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.

5. Only a ‘person’ can bring guardianship and financial management applications under the Guardianship Act 1987 (NSW) (“the Act”). Section 21 of the Interpretation Act 1987 (NSW) defines a ‘person’ as “includes an individual, a corporation and a body corporate or politic”. Life Without Barriers is a corporation, established by its Constitution and registered as a public company limited by guarantee (ACN 101 252 171) and is therefore a ‘person’.

6. In order to assess the genuineness of concern held by a corporation as to the welfare of the person, the Tribunal has previously examined the organisation’s constituent documents, and its objects and functions: NEJ [2017] NSWCATGD 1, [23]; EBI [2017] NSWCATGD 6, [22]-[31].

7. The purpose and objects of Life Without Barriers are defined in paragraph 5 of their Constitution:

1. the purpose is the benevolent relief of disadvantage, distress, misfortune or helplessness experienced by vulnerable persons. Without the limiting the generality of the purpose, the objects of the Company include:

1. to carry on business as a financially self-sufficient, not for profit company;

2. to provide care and support (including in-home and out-of-home care and support) to, and promote and encourage the personal development of vulnerable persons, thereby assisting them to grow, develop and live with dignity, self-determination and acceptance in their communities;

3. to research, develop, promote, advocate for and/or encourage opportunities and activities that provide better living conditions and care for vulnerable persons, including opportunities and programs in various social, community, sporting and employment activities thereby assisting to achieve a better quality and enjoyment of life;

4. to work with relevant entities including, but not limited to, government, semi-government, non-government, public, private and other authorities, instrumentalities, businesses, companies, individuals, charities and other bodies or interest groups wishing to assist and promote the interests and dignity of, and opportunities for, vulnerable persons.

8. “Vulnerable Persons” is defined in paragraph 1 of the Life Without Barriers Constitution as being:

1. persons affected by physical, intellectual or mental disability;

2. elderly persons requiring care and support services both in and out of the home;

3. persons experiencing social disadvantage or discrimination, including refugees and the homeless; or

4. children at risk of entering or being cared for by a statutory child protection system.

9. Life Without Barriers’ Annual Report for the year 2019 shows that the organisation provided support to 6,098 people living with a disability and 6,499 older Australians through Home and Community Care. The Annual Report provides individual case studies and examples of the kind of services that Life Without Barriers provides.

10. The Tribunal considers that the purpose and objects of Life Without Barriers are consistent with a genuine concern for the welfare of people with a disability.

11. The Tribunal decided that Life Without Barriers has standing to make the application for a guardianship order.

Settlement

12. The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. There was no conflict in this matter.

What did the Tribunal have to decide?

13. The questions which had to be decided by the Tribunal were:

• Is CZX someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make 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?

Is CZX someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

14. Section 14 of the Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is “a person in need of a guardian”. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person”: the Act, s 3(1). A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: the Act, s 3(2).

15. CZX has a behaviour support plan dated 5 March 2020. The plan details that CZX has an intellectual disability and a mental illness and is not able to make important lifestyle decisions.

16. The Tribunal is satisfied that based on the behaviour support plan that CZX has a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order and what order should be made?

17. The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order:

1. (a) the views (if any) of:

1. the person;

2. the person’s spouse;

3. the person’s carer; and

2. the importance of preserving the person’s existing family relationships;

3. the importance of preserving the person’s particular cultural and linguistic environments; and

4. the practicability of services being provided to the person without the need for the making of such an order.

18. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

19. CZX has a close and continuing relationship with his parents. He did not extensively participate in the hearing. CZX enjoys ten pin bowling and dancing. He uses a treadmill for exercise.

20. Life Without Barriers made the application for guardianship to review and provide consent for restrictive practices concerning CZX. The restrictive practices are detailed in a behaviour support plan dated 5 March 2020. CZX has restricted access to the kitchen at the premises as he can excessively consume food which impacts on his welfare and health. The plan details this as being a restricted practice being environmental restraint. Further, the external gate to the premises is locked as CZX does not have sufficient road safety awareness. CZX can become highly agitated with challenging behaviours of concern with staff waiting for around 30 minutes after high agitation before CZX leaves the house and accesses the community. CZX has been prescribed psychotropic medications for anxiety and behaviours of concern. The behaviour support plan details psychotropic medications as being chemical restraint.

21. TZX and SZX seek to be appointed as guardians for CZX.

22. Ms X, Team Leader at Life Without Barriers, Mr M from Life Without Barriers and Ms Z, Operations Manager at Life Without Barriers, all support the application for guardianship.

23. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made. CZX is settled in his accommodation and there are no proposals for any change in his accommodation. He receives services and supports which are funded through the National Disability Insurance Scheme. CZX has been prescribed psychotropic major medications. CZX’s behaviour support plan details the use of some of the psychotropic medication as being a restrictive practice chemical restraint. His behaviour support plan details restricted access to the kitchen and locked external gate at the premises. This is a restrictive practice environmental restraint. These restrictive practices require the consent of a formal guardian for their use. The role of the guardian is to also review the behaviour support plan, ensure that there is a current plan and consent to its use if it is in accordance with the welfare and interests of CZX.

24. TZX and SZX are ‘persons responsible’ and can give substitute consent for CZX’s medications, health care and medical treatment in accordance with s 33A of the Act.

25. What decision making functions should be included in the order: services (to deal with a comprehensive behaviour support plan) and restrictive practices being chemical restraint and environmental restraint. There is no need for a medical consent function in the order as TZX and SZX are ‘persons responsible’ for CZX.

Who should be the guardian?

26. There is a proposal that TZX and SZX be appointed as joint guardians for CZX. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she must:

1. have a personality generally compatible with the personality of the person under guardianship;

2. have no undue conflict of interest (particularly financial) with those of the person; and

3. be able and willing to exercise the functions of the order.

27. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, [66]).

28. CZX has a close and continuing relationship with his parents and agreed for them to provide support. Life Without Barriers staff support the appointment of TZX and SZX as the joint guardians for CZX. On the basis of this evidence, the Tribunal was satisfied that TZX and SZX meet the requirements to be appointed as the joint private guardians for CZX.

How long should the order last?

29. An initial guardianship order can be made for a period of up to one year from the date on which it was made.

30. The Tribunal decided to make an order for one year because there is a restrictive practices function in the order which should be reviewed after a reasonable period of time.

FINANCIAL MANAGEMENT APPLICATION

What the Tribunal decided

31. The Tribunal dismissed the application for the appointment of a financial manager.

Background

32. CZX is 40 years of age and resides in supported accommodation in regional NSW which is managed by Life Without Barriers. CZX family includes his parents, TZX and SZX. Life Without Barriers made an application for financial management concerning CZX.

The hearing

33. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

Settlement

34. The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. There was no conflict in this matter.

Does Life Without Barriers have standing to bring this application?

35. A person has standing to bring an application if he or she is:

1. the person who is the subject of the application;

2. the NSW Trustee and Guardian; or

3. any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.

36. The Tribunal found that Life Without Barriers has standing to make the application for a financial management order in accordance with [4]-[11] above.

What did the Tribunal have to decide?

37. The questions to be considered by the Tribunal are:

• Is CZX incapable of managing his affairs?

• Is there a need for another person to manage CZX’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?

Is CZX incapable of managing his affairs?

38. The test for determining a person’s capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]):

Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests?

…

[A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.

39. In considering whether the person is “able” in this sense, consideration may be given to:

• past and present experience as a predictor of the future course of events;

• support systems available to the person; and

• the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498, at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, at [309].

40. The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86; see Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [20]).

41. CZX has a behaviour support plan dated 5 March 2020. The plan details that CZX has an intellectual disability and a mental illness and is not able to make important lifestyle decisions.

42. The Tribunal is satisfied that based on the behaviour support plan that CZX is not capable of managing his financial affairs.

Is there a need for a financial management order?

43. CZX receives a Centrelink disability support pension. His parents are his Centrelink nominees for the pension. They provide CZX with cash which he takes for his activities and purchases. TZX and SZX deal with expenses and payments for CZX. There are no financial matters that are outstanding for CZX and are able to continue to be undertaken without a formal financial management order.

44. Life Without Barriers stated that the application for financial management was made to formalise the financial arrangements for CZX. Ms Z and Ms X agreed that there are no outstanding financial matters concerning CZX.

45. The Tribunal was not satisfied that there is a need to appoint someone to manage CZX’s affairs. TZX and SZX are able to deal with CZX’s financial matters without being formally appointed as financial managers. There are no outstanding financial matters concerning CZX. It is not in the best interests of CZX for a financial management order to be made as there are fees payable to the NSW Trustee and Guardian under such an order. The application for financial management is not needed and is dismissed.

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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: 26 November 2020