EJD

[2015] NSWCATGD 31

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	EJD [2015] NSWCATGD 31
Hearing dates:	6 May 2015
Date of orders:	06 May 2015
Decision date:	06 May 2015
Jurisdiction:	Guardianship Division
Before:	S Taylor, Senior Member (Professional)
Decision:	Guardianship order lapsed.
Catchwords:	GUARDIANSHIP – end of term review of guardianship order – evidence from appointed guardian that the guardianship order is unworkable – subject person acts on her own decisions – no evidence of need – guardianship order allowed to lapse
Category:	Principal judgment
Parties:	Ms EJD (the person under guardianship) The Public Guardian (appointed guardian)
Representation:	Nil
File Number(s):	12610
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identity any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION   

What the Tribunal decided

1. The Tribunal reviewed the previous guardianship order concerning Ms EJD made on 8 May 2014 and decided that the order should lapse.

Background

2. Ms EJD is a 74-year old transgender woman who is reported to have alcohol-related brain damage and frontal lobe dementia. She has been residing at a low-care facility in Regional NSW, since September 2014, after having been discharged from a public hospital. Ms EJD has a sister who resides at West Sydney.

3. On 20 November 1996 the Tribunal appointed the NSW Trustee and Guardian as Ms EJD's financial manager, and the Public Guardian as her guardian. Ms EJD has been under the guardianship of the Public Guardian at various times since then. Most recently, on 8 May 2014, the Tribunal appointed the Public Guardian for a period of twelve months with the functions of accommodation (coercive), health care, medical and dental consent and services. The matter before this Tribunal was the statutory review at the end of the term of that guardianship order.

The hearing

4. At the end of these Reasons for Decision are lists of the parties to the review and witnesses who attended the hearing [appendix removed for publication].

What did the Tribunal have to decide?

5. The questions which have to be decided by the Tribunal are:

• Is Ms EJD someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

• Should the Tribunal make a further guardianship order and if so, what order should be made?

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

6. When the previous order was made, the Tribunal found that Ms EJD had alcohol-related brain damage and frontal lobe dementia, and was unable to make important life decisions. There is no new evidence before the Tribunal in relation to this issue.

7. The Tribunal is satisfied that Ms EJD continues to have a disability which prevents her making important life decisions. She is a person for whom the Tribunal could make a further guardianship order.

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

The views of the representative from the Office of the Public Guardian

8. In a report to the Tribunal dated 4 May 2015, the representative recommended that the guardianship order be allowed to lapse. The representative noted that at the time of the last hearing Ms EJD was homeless, having left an accommodation service for homeless people in Sydney. She was subsequently admitted to a public hospital, where she had an ACAT assessment which indicated that she required low level hostel accommodation. Suitable accommodation was not available in Ms EJD's preferred areas, and so in September 2014 she moved into the low-care facility in Regional NSW. She settled in well initially, but in recent months has been refusing medication, and has become verbally aggressive with staff, and non-compliant with mental health appointments. She travels to Sydney every day, sometimes not returning to the facility until late at night.

9. The representative said that the Public Guardian has supported Ms EJD's wish to move, and has provided information to assist her to do so, however no alternative options have become available. Ms EJD has many links with community services, is very involved with the Pentecostal church, and receives a lot of support from the minister there. She independently seeks support and advice, including from politicians, about her situation. She follows up on her own medical treatment, sees her doctors regularly, and develops links to services in various communities. Her GP considers that she is able to consent to her own treatment. The representative said that guardianship has not been appropriate for Ms EJD, as it has not been possible to compel her to undertake assessments or to remain in accommodation, and for this reason, the Public Guardian considers that the guardianship order is unworkable. Ms EJD may benefit from having an advocate, and the Public Guardian has given her information about Disability Advocacy Services.

The views of Ms SNQ, Care Manager at the low-care facility in Regional NSW

10. Ms SNQ said that Ms EJD was going well at first, and was taking her medication, which includes an antipsychotic and a mood stabiliser. However she has been refusing her medication for the past one to two months, her personal hygiene has deteriorated significantly, and there are concerns about hoarding and squalor in her room. Ms EJD's safety may also be at risk, as she travels late at night. The facility is unable to meet Ms EJD's needs, as she refuses help, and it is unclear what can be done to improve the situation. Ms SNQ agreed however that the guardianship order has been of limited use.

The views of Ms EJD

11. Ms EJD told the Tribunal that she is not happy with her current accommodation at the low-care facility in Regional NSW, and wants to move back to Sydney. She does not have anyone in Regional NSW, and all her supports are in Sydney, including her sister, and the people at the Pentecostal church, who have been enormously helpful to her, and helped her to remain sober for the past 13 years. Ms EJD said she has had trouble getting her medication, but now has a script from her GP. She plans to go and talk to the disability advisor at the Clarence Street office of the NSW Trustee and Guardian, who may be able to assist her with accommodation. Ms EJD said she does not mind if she has a guardian or not.

Are there decisions which need to be made by a guardian?

12. The evidence is that Ms EJD is currently not settled in her accommodation, and there are issues with her accepting services at the low-care facility in Regional NSW. However the Public Guardian has submitted that the order should lapse, as decisions made by the Public Guardian are not able to be implemented because Ms EJD makes and acts on her own decisions. Ms EJD has links with many services, and has good support from her church and GP, who considers that she is able to make her own treatment decisions.

13. The Tribunal notes that Ms EJD has been under the guardianship of the Public Guardian for several years, but has generally made her own decisions, and has changed her accommodation on several occasions during this period. The evidence is that Ms EJD is able to access services herself, and, with assistance, to seek out accommodation options which may be suitable for her. The Public Guardian has provided her with contact details for advocacy services, which may assist her. The Tribunal was satisfied that Ms EJD continues to make her own decisions, and that the guardianship order is generally unworkable, and it is therefore appropriate to allow the guardianship order to lapse.

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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