FKS v Public Guardian

[2023] NSWCATAD 227

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FKS v Public Guardian [2023] NSWCATAD 227

Hearing dates:

9 August 2022, 25 November 2022

Date of orders:

17 August 2023

Decision date:

17 August 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Gatland, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – person under guardianship – review of decision of the Public Guardian that person be accommodated at an aged-care facility – correct and preferable decision – welfare and interests of the person paramount

Legislation Cited:

Guardianship Act 1987 (NSW), ss 4, 80A

Administrative Decisions Review Act 1997 (NSW), s 63

Cases Cited:

McDonald v Director-General of Social Security (1984) 1 FCR 354

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

P v NSW Trustee and Guardian [2015] NSWSC 579

WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FKS (Applicant)
Public Guardian (First Respondent)
FKA (Second Respondent)

Representation:

Applicant (Self-Represented)
Public Guardian (First Respondent)
Second Respondent (Self-Represented)

File Number(s):

2022/00063779

Publication restriction:

The publication of the name of the Applicant and the persons subject to the decision under review is prohibited under the Civil and Administrative Act 2013 (NSW), s 64(1)(a).

REASONS FOR DECISION

Introduction

1. FJI is a woman in her late eighties living with dementia, anxiety and other physical health problems.

2. On 16 July 2021, the Guardianship Division of this Tribunal appointed the Public Guardian, the first respondent in these proceedings, as FJI’s guardian. The appointment has continued and has been expanded over time. Relevantly, the Public Guardian is required to make decisions about where FJI should reside, what health care FJI should receive, whether FJI can be subject to environmental constraints, what services should be provided to FJI, and to give consent for medical treatment where FJI is not capable of providing that consent.

3. On 15 October 2021, the Public Guardian determined that FJI should move from her home where she lived with the FKS, the applicant in these proceedings, and reside permanently at a residential aged-care facility. This is the decision under review in these proceedings.

4. Before the Public Guardian made this decision, FJI had received respite care at the same aged-care facility to allow the Public Guardian to ascertain her care needs and arrange a function assessment and geriatrician’s review. The transition into respite care occurred in about August 2021 after the provider of FJI’s home care package as well as FJI’s daughter, FKA, who is the second respondent, reported concerns about FJI’s well-being and the level of care being provided to FJI at home. FJI has lived at the aged-care facility since that time.

5. FKS is FJI’s son. About 14 months before she was moved to the aged-care facility, FKS moved into FJI’s home to look after her. He continues to reside there. In February 2022, having sought internal review, FKS applied to the Tribunal to review the Public Guardian’s decision concerning FJI’s accommodation…