DNS

[2016] NSWCATGD 6

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DNS [2016] NSWCATGD 6

Hearing dates:

26 February 2016

Date of orders:

26 February 2016

Decision date:

26 February 2016

Jurisdiction:

Guardianship Division

Before:

J Currie, Senior Member (Legal)
S Fogg, General Member (Community)

Decision:

Guardianship order renewed and varied. Public and Private Guardians appointed for 12 months with separate functions. Public Guardian given the authority to make decisions about accommodation; Private Guardian given the authority to make decisions about health care and consent to medical and dental treatment.

 Application to be joined as a party refused.

Catchwords:

GUARDIANSHIP – end of term review of guardianship order – subject person absent from the hearing – welfare and interests of the subject person considered – section 4, Guardianship Act 1987 (NSW) – access function sought – guardianship order renewed and varied – public and private guardians appointed with separate functions

INTERLOCUTORY – application to be joined as a party – consideration of applicable principles – section 44(1), Civil and Administrative Tribunal Act 2013 (NSW) – application dismissed

PROCEDURE – video evidence provided to the Tribunal – relevance of evidence – privacy and consent of subject person – consideration of section 36, Civil and Administrative Tribunal Act 2013 (NSW) – evidence not provided to parties

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 36 and 44 (1)(a), 49 (2); cl 7 and 7(1) of sch 6
Guardianship Act 1987 (NSW), ss 3F, 4, 6K (3), 14(2), 17(1)
Powers of Attorney Act 2003 (NSW), ss 33 to 35, 35(3), 36(4)(f)

Cases Cited:

Kioa v West [1985] HCA 81; (1985) 159 CLR 550
LA v Protective Commissioner [2004] NSWADTAP 39

Category:

Principal judgment

Parties:

Mrs DNS (person under guardianship)
Mrs KBS (an appointed guardian of Mrs DNS)
The Public Guardian (an appointed guardian of Mrs DNS)

Representation:

Nil

File Number(s):

57583

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify a person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

REVIEW OF A GUARDIANSHIP ORDER

What the Tribunal decided

Guardianship

1. The Tribunal decided to renew and vary the guardianship order made for Mrs DNS on 5 February 2015. A further limited continuing order was made. The Public Guardian and Mrs KBS were appointed as guardians for Mrs DNS, with separate functions. The Public Guardian was authorised with the decision-making function of accommodation. Mrs KBS was authorised with the decision-making functions of health care and consent to medical and dental treatment.

Joinder application

2. The Tribunal decided not to grant the application by Mr SMC, a son of Mrs DNS, to be joined as a party to the proceedings.

Parties and witnesses

3. The Appendix to these Reasons for Decision identifies the parties to the review and the witnesses who participated in the hearing. [Appendix removed for publication.]

Background

4. Mrs DNS is an 84-year woman who is reported to have been diagnosed with dementia, which has resulted in a gradual but significant decline in her cognitive function. She has three sons: Mr HVT and Mr SMC who live separately in northern Sydney, and Mr CNU who lives in the United States of America. Mr HVT’s wife is Mrs KBS. The Tribunal understands that there is a history of considerable discord within the family about who should manage Mrs DNS’s affairs.

5. Mrs DNS is currently accommodated on respite basis at an aged care facility in northern Sydney.

6. Mrs DNS has been known to the Tribunal since 14 November 2014, when the Tribunal commenced its hearing of an application by Mr SMC, which sought:

1. the appointment of a guardian;

2. the review of appointment of an enduring guardian (“the Appointment of Enduring Guardian”) dated 28 May 2013. By that instrument Mrs DNS appointed her daughter-in-law, Mrs KBS, as her guardian; and

3. the review of an enduring power of attorney (“the Power of Attorney”), which was apparently executed by Mrs DNS on 28 May 2013. By that instrument, Mrs DNS appointed Mr HVT and Mrs KBS as her attorneys. There was a previous power of attorney, apparently executed on 6 December 2006 under which Mrs DNS appointed each of the three sons jointly and any two of them separately, as her attorneys.

7. On 14 November 2014 the Tribunal adjourned the hearing with directions.

8. At the resumed hearing on 5 February 2015 the Tribunal ordered that:

1. a continuing limited guardianship order would be made for Mrs DNS, under which separate guardians would be appointed for 12 months. The Public Guardian was appointed with the decision-making functions of accommodation and services, and Mrs KBS, the daughter-in-law of Mrs DNS, was appointed with the decision-making functions of health care and consent to medical and dental treatment;

2. the Appointment of Enduring Guardian would be revoked and the Tribunal would exercise the discretion available to it under s 6K (3) of the Guardianship Act 1987 (NSW) to proceed as if an application for a financial management order for Mrs DNS had been made;

3. the appointments made under the Power of Attorney would be revoked under s 36(4)(f) of the Powers of Attorney Act 2003 (NSW); and

4. a financial management order would be made for Mrs DNS, appointing her son Mr HVT as financial manager, subject to the authority and direction of NSW Trustee and Guardian.

9. The purpose of the Tribunal’s hearing at Balmain on 26 February 2016 was to conduct the statutory end of term review of the guardianship order made on 5 February 2015, as referred to at [8 (1)] above.

10. On 19 February 2016 the Tribunal received from Mr SMC, a son of Mrs DNS, a request to be joined as a party to this review. Mr SMC’s request was considered by the Tribunal at this hearing.

Issues for determination by the Tribunal

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

1. Should the Tribunal grant or refuse the request by Mr SMC to be joined as a party to the proceedings?

2. Is Mrs DNS someone for whom the Tribunal could make a further guardianship order because she continues to have a disability which prevents her from being able to make important life decisions?

3. Should the Tribunal make a further guardianship order?

4. If so, what order should be made? Should the Tribunal confirm or renew the existing order, should the existing order be varied or suspended? Should the existing order be allowed to lapse or should it be revoked?

5. If there is to be a further guardianship order who should be the guardian and what order should be made?

6. How long should any further guardianship order last?

Mrs DNS’s absence from the hearing

12. Immediately prior to the commencement of the hearing the Presiding Member was able to speak by telephone to the Deputy Director of Nursing at the aged care facility where Mrs DNS currently resides. On the basis of her views and the views expressed by Mrs DNS’s son and daughter-in-law, Mrs KBS, and Mr HVT at the opening of the hearing, we were satisfied that, because of her dementia, Mrs DNS is presently incapable of understanding the nature of the hearing or the issues which we needed to determine in the hearing and that she might become distressed if required to participate.

13. There is substantial legal authority which supports a decision in these circumstances to continue with the hearing in the absence of the subject person, provided that the Tribunal is satisfied that this would in all the circumstances be fair and would not prejudice the welfare or interests of the subject person. See for example: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at [585], and LA v Protective Commissioner [2004] NSWADTAP 39). The Tribunal was satisfied that a decision to continue the present hearing would be fair and would not prejudice Mrs DNS’s welfare or interests. Indeed, because of the importance of the issues before the Tribunal and the likelihood that Mrs DNS’s condition would not improve sufficiently over time for her to participate meaningfully in any future hearing, we were satisfied that her welfare and interests would be promoted by our continuing with the hearing on this day, notwithstanding her absence. For those reasons we decided to do this.

THE TRIBUNAL'S ASSESSMENT OF THE EVIDENCE AND DETERMINATION OF THE ISSUES

The joinder request from Mr SMC

Mr SMC’s stated position and his request for access

14. In the week prior to this hearing Mr SMC forwarded to the Tribunal a substantial amount of documentation and engaged in email correspondence with the Tribunal’s Case Officer. It emerged from that material that Mr SMC’s position was that he wished to be joined as a party to the proceedings, on the grounds that he was close to his mother and that he had genuine concerns for her welfare.

15. Mr SMC had indicated to the Tribunal that he did not wish to participate in the hearing. This was confirmed by a telephone conversation between the Presiding Member and Mr SMC at the commencement of the hearing. Mr SMC reiterated that he not wish to participate, even by telephone,

16. At the hearing, Mrs KBS objected to the joinder request from Mr SMC. Mrs KBS’s objection was supported by her husband Mr HVT.

17. Mr SMC’s apparent purpose in seeking to be joined as a party was to enable him to put his case (or perhaps to put his case more fully) that an access function should be added to the existing guardianship order. Mr SMC appeared to have no other issues with the existing guardianship order. In a letter dated 17 February 2016 to the Case Officer, Mr SMC stated as follows:

My sole request is an application for orders giving me three hours with mum on Sunday mornings with the assurance of no contact with [Mr HVT] (his brother) or his family, including messages sent through mum by telephone.

18. In support of his request, Mr SMC provided the Tribunal with substantial documentation, including detailed email correspondence with his mother and a short video. The Tribunal Members reviewed the video prior to the hearing.

19. We decided not to admit the contents of the video as evidence in these proceedings. We did this principally because the video established only that a woman of apparently advanced years (who we assumed to be Mrs DNS) was making a telephone call in the presence of a male person who was filming (which the material suggested was Mr SMC) to another person. There were two separate videos covering two separate short telephone calls and Mr SMC asserted that these were taken on different dates. We could not hear clearly what the caller was saying and we were completely unable to hear what the recipient of the telephone calls was saying. There was nothing from which we could assess the identity of the recipient of the calls, or whether the two calls were made to the same person. Mrs DNS appeared to be slightly confused and upset at the conclusion of each of the short telephone calls. In our view, neither of the videos amounted to evidence relevant to any issue before the Tribunal.

20. We decided not to make the videos available to the other parties to the proceedings, or to view them at the hearing. We did this partly to preserve the privacy of Mrs DNS (on the assumption that the caller was Mrs DNS), particularly as she was not participating in the hearing and because we could not be sure that she understood that she was being video-recorded at the time of making these telephone calls. In our view, making the videos available to the other parties for view during the hearing or adjourning the proceedings to allow this to occur would not be reasonable or justified in the circumstances and would be inconsistent with the guiding principle set out in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW), which requires us: “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”.

21. In his written material submitted prior to the hearing, Mr SMC asserted that he had a mental health condition. His written material included a report from Mr Z, Psychologist, dated 16 February 2016, confirming that Mr SMC had been referred for treatment of severe depression and anxiety symptoms and that in Mr Z’s opinion he met the criteria for a diagnosis of Post-Traumatic Stress Disorder (“PTSD”). It was clear from Mr SMC’s correspondence that he asserted that his PTSD would be exacerbated by what he described as “torment” as a result of any contact with his brother Mr HVT, including indirect contact by way of a telephone conference at this hearing. We took Mr SMC to be contending further that he needed an access function within the guardianship order so as to avoid an exacerbation of his PTSD, which (in his assertion) would arise from contact with his brother whilst visiting his mother, or from his apprehension that such a contact might occur during his visits.

Principles which govern the Tribunal’s consideration of whether to join a person as a party to proceedings

22. The general scheme of the Guardianship Act and related legislation, as supported by the long-standing practices of the Guardianship Division of the Tribunal, is to place a sensible limit on the number of parties to proceedings.

23. There are specific statutory provisions which specify that particular persons will be parties to proceedings before the Tribunal. These are supplemented by provisions giving the Tribunal power to join other persons as parties. In particular, s 3F of the Guardianship Act (supplemented by sections 33 to 35 of the Powers of Attorney Act in relation to reviews concerning enduring powers of attorney) prescribes the parties to various sorts of proceedings. There is a reserve power in the Tribunal under each of the relevant subss of s 3F of the Guardianship Act, in s 44 (1)(a), and cl 7 of sch 6 of the Civil and Administrative Tribunal Act (“the CAT Act”) and in s 35(3) of the Powers of Attorney Act, enabling the Tribunal to join other persons as parties.

24. The general power to join parties is in s 44 (1)(a) of the CAT Act. It allows the Tribunal to order that a party be joined if the Tribunal considers that the person should be joined. Sub-clause 7(1) of sch 6 of the CAT Act specifies the way in which this generally stated principle will be applied to proceedings in the Guardianship Division. It provides as follows:

(1) The Tribunal may make an order under section 44 (1) of this Act joining a person as a party to proceedings for the exercise of a Division function if, in the opinion of the Tribunal, the person should be a party to the proceedings (whether because of the person’s concern for the welfare of the person the subject of the proceedings or for any other reason).

25. It follows from the wording of s 44 (1) and it is consistent with the practice of this Division of the Tribunal, that the Tribunal will need to be satisfied that joinder is justified in all the circumstances. In determining this question the Tribunal can rely on the person’s concern for the welfare of the subject person, but can also make a joint order for any other reason.

26. However, the Tribunal will always make its decision based on the general principle and practice stated at [22] above; that is, it will be conscious of the need to place a practical limit on the number of parties to any proceedings. That approach may be adopted even though the Tribunal Panel is inclined to accept that the person making the request has a genuine concern for the welfare and interests of the subject person.

27. Such an approach is justified on three grounds:

1. Proceedings in this division often involve the production of private, sensitive or confidential material, in written or oral form, relating to the mental health condition, cognitive ability, general health care, treatment, diagnosis, care of or support for the subject person, or other sensitive private or confidential matters relating to the subject person’s disability. The protection of the confidentiality, privacy and sensitivity of the subject person will be a significant factor for the Tribunal’s consideration in these circumstances. Such an approach is consistent with the “paramount principle” stated in s 4 (a) of the Guardianship Act which requires the Tribunal in such proceedings to give the welfare and interests of the subject person paramount consideration. In our view the Tribunal must in appropriate cases address the issue of whether there is justification in the circumstances for the distribution of sensitive, private or confidential information about the subject person to the applicant or applicants for joinder. In many cases it will simply not be in accordance with the Tribunal’s obligations as reflected in the s 4 principles for that to occur.

2. In deciding a joinder request the Tribunal must have regard to the “guiding principle” stated in s 36 of the CAT Act; that is the obligation to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Consideration of this important principle will in many situations lead the Tribunal to refuse a joinder request.

3. In considering a joinder request the Tribunal may also be inclined to take into account whether any real advantage would accrue to the person making the request, over and above the rights which, in practice, they may have as a general participant in the proceedings. Hearings before the Tribunal are generally open to the public, unless the Tribunal orders otherwise. It is true that the Tribunal is given power under s 49 (2) of the CAT Act to order that hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter, or for any other reason. But generally a participant who demonstrates a clear interest in the proceedings or a genuine concern for the subject person will be permitted to be present and will be heard. Whilst that is true that parties have specific rights, in appropriate cases some of those rights can be extended to non-parties. The rights which are specifically granted to parties include the right to receive all documentation produced in evidence, the right to appear at the hearing, to address the Tribunal and to cross-examine other witnesses, the right to apply for legal representation and the right to appeal against a relevant decision of the Tribunal. The first four of these are of course subject to any contrary direction or order of the Tribunal. However, the accepted practice of the Tribunal in appropriate cases and particularly where the confidentiality and privacy of the subject person, or any other person would not thereby be prejudiced, is to extend some of these rights to particular non-parties. So, for example, in many proceedings non-parties are provided with documentation and given the opportunity to make submissions. Non-parties retain the right to have legal advice in relation to Tribunal proceedings (but not legal representation at the hearing). Written submissions from non-parties are always considered and, where appropriate, oral submissions from non-parties are allowed at the hearing. In most hearings at least some of the substantive evidence will come from non-parties.

The Tribunal’s determination of Mr SMC’s request

28. In this case the Tribunal was satisfied that Mr SMC had demonstrated a genuine concern for the welfare and interests of his mother, Mrs DNS. We could not see that there was any private, sensitive, or confidential material available for the review to which Mr SMC should not have access. However, we decided to refuse Mr SMC’s request to be joined as a party. We did this for the following reasons:

1. In particular, we took into account that Mr SMC’s stated sole interest in the proceedings was to advocate for an access function for the current guardian, for the sole purpose of enabling him to visit his mother for a few hours on Sundays and that Mr SMC had made his case for this at length in his substantial correspondence and written material, all of which had been considered by us.

1. We also took into account that Mr SMC did not wish to participate in the hearing in any way, even by telephone connection, for reasons which he explained in his correspondence.

2. We could not see any other particular advantage for Mr SMC in these circumstances in being made a party. His right to provide evidence and make submissions had been exercised by way of his written material lodged with the Tribunal and he had forgone the opportunity to participate, even by telephone, in the hearing.

3. We were also of the view that our obligation under s 36 of the CAT Act to facilitate a just, quick, and cheap resolution of the real issues weighed against the participation of Mr SMC as a party, particularly in light of the history of family discord and Mr SMC’s suggestions that his current disability was caused by contact with his brother Mr HVT and by the way Mr HVT dealt with him. We were of the view that adding Mr SMC as a party might exacerbate these sources of discord, in circumstances where this would not promote a quick or cheap resolution of the real issues and would not promote the interests of Mrs DNS. We add that we make no finding as to the veracity of Mr SMC’s claims in this regard.

29. It followed that Mr SMC would not be joined as a party and at his request would be refused.

Is Mrs DNS someone for whom the Tribunal could make a further guardianship order because she continues to have a disability which prevents her from being able to make important life decisions?

30. At the Tribunal’s hearing on 5 February 2015 it accepted substantial medical and clinical evidence, including that from Mrs DNS’s general practitioners and a report from Dr Y, who is a Staff Consulting Geriatrician at a public hospital, as establishing to the Tribunal’s satisfaction that Mrs DNS had disabilities which prevented her from making important life decisions. There was no new or updated, medical or clinical evidence available to us.

31. We noted that Mr SMC’s contention appeared to be that his mother had dementia but in many ways was capable of making at least basic decisions. The family members participating in the hearing and a Senior Guardian at the Office of the Public Guardian were of the view that Mrs DNS’s cognitive ability was slowly declining. The Senior Guardian reported that the Director of Nursing at the nursing home where Mrs DNS some respite had reported that she is totally incapable of all activities of daily living. We noted that that was consistent with the medical findings accepted by the Tribunal a little over a year ago. We accepted that medical evidence as being of substantial weight as considered and objective specialist evidence. There was nothing before us to indicate that Mrs DNS’s general condition or cognitive ability had improved and on that basis we were satisfied that she is someone for whom a further order could be made, because she continues to have disabilities which prevent her from making important life decisions.

Should a further guardianship order be made?

Legal basis for the Tribunal’s analysis

32. The Tribunal has discretion as to whether or not to make a further guardianship order, even where it has concluded that the subject person continues to be prevented from making important life decisions by reason of a disability. Not all people with a disability who are incapable of making life decisions should be regarded as being in need of a guardianship order and there are important principles in the Guardianship Act, particularly in ss 14(2) and 4 of that Act, which govern the circumstances in which the Tribunal should make an order.

The Public Guardian’s View and the views of the private guardian and family members

33. The Tribunal considered a detailed report from the Office of the Public Guardian (“OPG”) dated 30 December 2015 and the evidence at the hearing from a Senior Guardian of the OPG. The Public Guardian’s view as reflected in its report was that Mrs DNS still needs a guardian to make decisions about where she should live and the services she will need. That view was strongly supported by the separate private guardian, Mrs KBS, and by Mrs DNS’s son Mr HVT. We accepted these views as persuasive. There were no contrary views.

The Tribunal’s assessment and conclusions on this issue

34. In reaching a conclusion on this important issue the Tribunal considered the factors prescribed by subs 14 (2) of the Guardianship Act. The factors which were of relevance to this case included the views of Mrs KBS, as the carer for Mrs DNS and the importance of preserving Mrs DNS’s existing family relationships. The Tribunal gave particular weight to the practicability of services being provided to Mrs DNS, without a further guardianship order. It was satisfied on the evidence that such services as she needed could not be provided unless a further order is made.

35. The Tribunal also took into account the guiding principles set out in s 4 of the Guardianship Act. The principles which appeared to have primary relevance to this case (other than those already considered by reference to s 14 (2)) were the need to protect Mrs DNS from any neglect, abuse or exploitation, and the need to encourage her, so far as possible, to live a normal life in the community. As we are required to do by s 4 of that Act, we gave paramount consideration to the welfare and interests of Mrs DNS. We found that each of these factors justified the making of a further guardianship order for her.

36. On the basis of the evidence and its analysis of these principles we were satisfied that there was a continuing current need for decisions on behalf of Mrs DNS to be made by a guardian, that there was no practical alternative to the appointment of a guardian and that accordingly there was a continuing need for a guardian. It followed that there should be a further guardianship order.

What order should be made? Specifically what functions should the guardian have, who should be the guardian and what should be the duration of the order?

Decision-making functions

37. The Public Guardian’s report indicated that it did not see a current need for decisions about Mrs DNS’s health care or consent to her medical or dental treatment to be made by a guardian. However, at the hearing, the Senior Guardian confirmed that she had visited Mrs DNS in the week prior to the hearing and that as a result the Public Guardian had on the day of the hearing accepted an offer of a permanent placement at the nursing home at which she was currently placed on respite. The Public Guardian was of the view that Mrs DNS had settled in to that accommodation quickly and well and that she would be appropriately placed on a permanent basis in that nursing home. The family members in attendance at the hearing appeared to agree that this was so. The Senior Guardian confirmed that in the circumstances and accommodation functions should continue, to allow arrangements to be finalised for Mrs DNS to become a permanent resident.

38. The Senior Guardian also confirmed that in the circumstances there was no further need for a services function as all services would be provided through the nursing home. This view appeared to be supported by the family members who were participating, and we found that view to be persuasive.

39. Mrs KBS, the separate private guardian for Mrs DNS, told the Tribunal that she believed that the health care and medical and dental consent functions should continue. Mrs DNS said that she had had difficulty in obtaining certain information from health professionals about Mrs DNS’s condition and treatment and that these difficulties would be exacerbated if she as guardian did not have an appropriate function in respect of these matters.

40. Mrs KBS, supported by Mr HVT, also contended that given the history of discord between family members as to the care and treatment for Mrs DNS there would be no certainty that the “person responsible” mechanism would provide a clear avenue for the making of appropriate health and treatment decisions for her. The Tribunal understood the Senior Guardian from the Public Guardian to concede that the retention of the health and medical and dental functions would be important to enable the appointed guardian to obtain appropriate information concerning Mrs DNS’s condition and treatment. We accepted these contentions as persuasive and there were no contrary contentions on this issue.

41. It followed that the guardian or guardians for Mrs DNS should have the decision-making functions of accommodation, health care, and medical and dental consent. We considered separately whether there should also be an access function, as requested by Mr SMC.

Is an access function appropriate?

42. We considered carefully the written submissions which had been made by Mr SMC in support of the grant of an access function for the sole purpose of enabling him to have access to his mother for a short given period each Sunday. The Senior Guardian from the Public Guardian confirmed that the usual practice was for the Tribunal to exhaust all informal avenues for arranging access before adding a formal access function to a guardianship order.

43. In our view it is not unreasonable for Mr SMC to seek to have appropriate access to his mother. Our understanding from Mr SMC’s correspondence was that he had not at this stage approached senior staff at the nursing home to arrange for access. That is perhaps understandable, in the circumstances. However, we do support the Senior Guardian’s contention that the usual practice, and indeed the one is most consistent with the interests of the subject person (here, Mrs DNS), is to attempt to make access arrangements through informal avenues before seeking a formal access function in a guardianship order. The informal avenues clearly include seeking consensus between all those who seek to have access to the subject person and, if that is not practicable or possible, to approach the facility at which the subject person resides, to see whether a timetable for visits can be agreed, on a basis which is compatible with the facility’s duty of care to the subject person and other residents.

44. We also take the opportunity to reinforce our support for the Public Guardian’s view that it should not be seen as a “referee” in relations to issues which might arise from disputed access. The Public Guardian’s role is primarily to make important lifestyle decisions on the subject person in the best interests, not to act as any sort of arbiter or referee of disputes between family members on matters including, but not limited to, access.

45. In these circumstances we could not see the need for an access function in this case. Such a conclusion is also consistent with the principle in s 4(b) of the Guardianship Act which requires us to make the “least restrictive order possible”. It followed that the order would not include an access function.

Identity of the guardian

46. The participants, including the Public Guardian, were in consensus that the separate appointment of the Public Guardian and Mrs KBS should continue, that the Public Guardian should have the sole role of making decisions about Mrs DNS’s accommodation and Mrs KBS should have the authority to make decisions about her health care and to consent to her medical and dental treatment.

47. We were persuaded that a separate appointment should again be made, and that the Public Guardian was appropriate to be authorised to make accommodation decisions for Mrs DNS. There was no evidence of any private person other than Mrs KBS being willing and able to be considered for appointment as separate private guardian. There was nothing in the evidence to indicate that Mrs KBS could not act competently and properly as a guardian or that she could not satisfy any of the requirements set out in s 17(1) of the Guardianship Act. We found her to be suitable for appointment and appointed her according.

48. It followed that there would be a separate appointment of guardians. The Public Guardian would be appointed with the decision-making function of accommodation and Mrs KBS would be appointed the decision-making functions of health care and medical and dental consent.

Duration of the order

49. We decided to make the guardianship order for 12 months as a reviewable continuing and limited order. In this regard we were persuaded by the contentions of Mrs KBS that it was important for a review to be undertaken by the Tribunal after a reasonable period to allow for Mrs DNS to settle as a permanent resident in her accommodation and also because of the unfortunate possibility that family discord concerning decision-making for Mrs DNS might continue.

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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: 12 July 2016