FMK

[2020] NSWCATGD 73

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FMK [2020] NSWCATGD 73

Hearing dates:

5 August 2020

Date of orders:

5 August 2020

Decision date:

05 August 2020

Jurisdiction:

Guardianship Division

Before:

J Moir, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
E McAlpine, General Member (Community)

Decision:

Financial Management

1. The estate of FMK is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. The management of the estate of FMK is committed to the NSW Trustee and Guardian.

3. This order be reviewed by the Tribunal within three years.

Guardianship

1. A guardianship order is made for FMK.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 5 August 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where FMK may reside.

b) Health care

To decide what health care FMK may receive.

c) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where FMK is not capable of giving a valid consent.

d) Services

To make decisions about services to be provided to FMK.

e) Restrictive Practices

To give or withhold consent as to whether the restrictive practice of chemical restraint should be used to influence FMK’s behaviour.

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring FMK to an understanding of the issues and to obtain and consider their 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 FMK’s behaviour:

(i) as a last resort to prevent FMK harming themself 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 FMK, 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.

Catchwords:

FINANCIAL MANAGEMENT – application for a financial management order – capacity to manage one’s own affairs – financial management order made – appointment of NSW Trustee and Guardian as financial manager – reviewable order made

GUARDIANSHIP – application for a guardianship order – restrictive practices – chemical restraint – appointment of Public Guardian

GENERAL – subject person not present – adequate notice of hearing – hearing proceeding in absence of subject person

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 25M

Cases Cited:

IF v IG [2004] NSWADTAP 3

McD v McD (1983) 3 NSWLR 81

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

Nil

Category:

Principal judgment

Parties:

001: Financial Management Application

FMK (the person)
BKN (applicant)
NSW Trustee and Guardian (proposed financial manager)

002: Guardianship Application

FMK (the person)
DZC (applicant)
Public Guardian

Representation:

Nil

File Number(s):

NCAT 2020/00132924

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 AND FINANCIAL MANAGEMENT APPLICATION

Background

1. FMK is an 18 year old Aboriginal man who lives in regional NSW, in supported accommodation, managed by a service provider. FMK is reported to have an intellectual disability. He was under the care of the Minister for Community and Justice from August 2017 until he turned 18 in May 2020 and was placed in the care of the service provider. He has some involvement with his family, particularly his mother, who lives in another regional NSW area.

2. In May 2020 the Tribunal received an application for a financial management order for FMK from BKN, his support coordinator from a disability support provider. In June 2020 the Tribunal received an application for a guardianship order from DZC, Therapeutic Case Manager. She states that there are restrictive practices in place for FMK and that a guardian is needed to consent to these and other matters.

3. These reasons for decision arise from the hearing of these applications.

Conduct of the hearing

4. The hearing was held by telephone and the Tribunal spoke with BKN, DZC Ms Z, Behaviour Support practitioner, and Ms Y, Case Manager. The Tribunal was told that DZC and Ms Lam were at FMK’s house with him, but that he had elected to remain in his bedroom and not participate in the hearing, despite encouragement. DZC tried a number of times through the hearing to encourage FMK to come and join the hearing, but with no success. The Tribunal was told that this is a common issue for FMK, and that due to his anxiety he is often unable to follow through on participating in meetings or activities he had intended to be part of. The Tribunal was confident that FMK was aware of the hearing and had every opportunity to participate if he wished, and given the evidence regarding his difficulties participating, the Tribunal did not think there was any greater chance that he would do so if the hearing was adjourned to a later date. The hearing participants agreed this was the case. On this basis, and given there is a need for FMK’s sake, to progress these applications, the Tribunal decided to proceed with the hearing, despite FMK’s lack of participation.

What did the Tribunal have to decide?

5. The questions which had to be decided by the Tribunal in relation to the guardianship application were:

• Is FMK 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?

6. The questions to be considered by the Tribunal in relation to the financial management application were:

• Is FMK incapable of managing his affairs?

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

GUARDIANSHIP

Is FMK 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?

7. Section 14 of the Guardianship Act 1987 (NSW) (“the Act”) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he 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).

8. In addition to the application, the Tribunal was given a Behaviour Support Plan for FMK dated 15 February 2020, by Ms Z which provides information regarding his disability and functional capacity. This refers to diagnosed conditions of intellectual disability, oppositional defiance disorder (ODD), attention deficit hyperactivity disorder (ADHD) and autism spectrum disorder (ASD). He has also been diagnosed with a chromosomal abnormality, and possible microcephaly, which are thought to be related to his intellectual disability.

9. At the hearing the Tribunal was advised that FMK was diagnosed with ODD and AHHD in 2007 by Dr X, Paediatrician in that other regional NSW area. He was diagnosed with intellectual disability and ASD in 2015 by Dr W, another Paediatrician, also from that other regional NSW area. He underwent further assessment in 2017 conducted by a psychologist (name unknown), using the Weschler Adult Intelligence Scale (WAIS) and the Adaptive Behaviour assessment scale (ABAS), and met the criteria for a mild intellectual disability.

10. Ms Z said that although FMK has many strengths, he experiences a consistent challenge making decisions that aren’t impulsive or based primarily on immediate gain. He experiences significant level of anxiety and requires support with most decision making. For example, BKN said that FMK has not played an active part in his National Disability Insurance Scheme (NDIS) planning, and prefers others to make this kind of decision for him.

11. Based on the available evidence, the Tribunal is satisfied that FMK has a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order if necessary.

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

12. 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. 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.

13. 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).

14. FMK’s life is in a transitional stage at present. He left the care of the Minister when he turned 18 in May 2020, but remained living in the same house under a model called “therapeutic supported independent living” (T-SIL). The service provider is funded to provide this, but it involves considerably less support than he was receiving before he turned 18. He no longer has support within the house, and so he cooks for himself and manages his other domestic activities. He has support workers for 14 hours a week, which is spread over four days. They assist him with shopping, and other activities. He also has case manager support in addition to this. He also has NDIS funding for core support which could supplement this but this has not started yet.

15. At this stage, it is not clear that this is the best accommodation model for him, and he may be better in a supported independent living model funded through the NDIS, so decisions need to be made regarding this. These are not straightforward as FMK has a history of aggressive behaviour towards some of the workers who used to stay with him prior to him turning 18 and there are a number of outstanding charges against him, currently before the Children’s Court, as well as a number in the Local Court. These include stalk, harass, intimidate and assault charges. They are all currently adjourned and his Legal Aid solicitor is seeking to have them all dismissed under “section 33” (of the Mental Health (Forensic Provisions) Act) 1990 (NSW)). The Tribunal was told there have been no charges of this kind (or at all) since FMK started to live on his own. None of these charges arose from FMK’s conduct within the community, which he accesses without restriction.

16. The Tribunal was given a Behaviour Support Plan (BSP) (version from 19 February 2020), which includes environmental and chemical restraints. The environmental restraints related primarily to keeping staff safe when they were with FMK (locked door to office, restricted access to sharps, restricted access to driver when in the car and room searches). The Tribunal was told that there is a BSP version from May 2020 as well as one which is being finalised currently, and that these do not include any environmental restraints because they are not necessary given no one is staying with FMK. However this may change if he does move to another supported independent living accommodation setting, with other people.

17. The chemical restraints in the February 2020 BSP continue (although FMK is reported to be unreliable about taking medication) and consist of medications prescribed by his GP. These need review, and the purpose for which they are prescribed needs clarification – that is, whether they are prescribed as treatment for a diagnosed medical/psychological condition, or primarily for the purpose of behavioural control. It would be helpful, in this context, for a guardian to have authority not only to consent to the use of restrictive practices (where appropriate), but also to be able to make decisions about his health care and to consent to medical and dental treatment on his behalf.

18. The Tribunal was told that FMK is not currently engaged with any day program or vocational program though there is money available in his NDIS plan. His NDIS funding tends to be underutilised. FMK wants to be able to get a job, and his supports have identified programs which may be of assistance but he has difficulties following through with the steps that might be needed to achieve this, including signing service agreements. It would be of assistance to him to have a guardian who is able to make decisions on his behalf regarding the services which support him.

19. There was general agreement amongst the hearing participants with this approach. The Tribunal was advised that FMK does have contact with his mother, mostly by telephone, and occasional contact with his father and brother and has visited them in the past during school holidays. His relationship with his mother is supportive and he benefits from talking with her. However she has not indicated that she wants to play a more active role in his life, and the Tribunal was advised she also has some issues in relation to intellectual disability and mental health concerns. This has meant that there is no one else in FMK’s life who is in a position to make decisions on his behalf in a less formal way than by the appointment of a guardian.

20. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made and the guardian given authority to make decisions about FMK’s accommodation, services, health care and to consent to the use of restrictive practices (chemical restraints) and to his medical and dental treatment.

Who should be the guardian?

21. The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed: the Act, s 15(3). As noted above, there is no one else in FMK’s life who was available to be considered as guardian, and on this basis, the Tribunal appointed the Public Guardian.

How long should the order last?

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

23. The Tribunal decided to make an order for 12 months because this should provide sufficient time for decisions to be made regarding a range of important matters in FMK’s life. It is appropriate that the order then be reviewed.

FINANCIAL MANAGEMENT

Is FMK incapable of managing his affairs?

24. 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.”

25. 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.

26. 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).

27. Each case must, of course, be considered on its own facts, including not only actual facts presently known but also, so far as they can be known, prospective developments.

28. The evidence regarding FMK’s intellectual disability and other conditions is referred to above and is relevant to consideration of his capability to manage his financial affairs. The Tribunal was advised that FMK receives the disability support pension and has full access to this. The nature of his accommodation (T-SIL) means that the service provider is funded to subsidise his accommodation/bills and groceries. The model is that he is supposed to contribute around $115 a week towards these costs and he is given a $120 grocery voucher. However FMK has declined to make the contribution, apparently stating that his financial manager will sort this out. Although he has his full pension as well as grocery vouchers of $120 a week for a few weeks, he has asked a number of times for additional money, demonstrating very little capability at this stage to live within a budget.

29. The Tribunal was advised of various efforts that had been made over the last year or so to help FMK learn some budgeting skills, without success. He has indicated a desire to save up for things, but despite being assisted with strategies to do this, he spends all of his pension very soon after being paid.

30. The Tribunal notes that FMK is a young man, who, regardless of his disabilities, has access to substantial fortnightly pension income and little pressure to spend it on anything other than his own immediate desires. It is quite likely that he will be able to learn better skills in budgeting as he matures, but the Tribunal was satisfied from the available evidence that at present, he is not capable of managing his own financial affairs, and is someone for whom a financial management order could be made.

Is there a need for a financial management order and is it in FMK’s best interest that a financial management order be made?

31. The Tribunal was told that FMK agrees that he needs someone to help manage his financial affairs. The evidence is that he has ongoing expenses, and will continue to have ongoing expenses that he must contribute to from his pension. However he has not, to date, been willing to do this. A financial manager will ensure that his necessary expenses are paid and that he has an allowance for his discretionary spending. As he matures, the financial manager may be able to give him more opportunity to manage his own funds, to assist him to develop skills,

32. The Tribunal was also told that he is likely to receive some Victims Compensation payment in due course, though it is unclear when this might be or how much he might receive. In any event it will be in his interests for this money to be managed so that it is not spent impulsively, without regard to FMK’s needs and longer term wants.

31. On balance, the Tribunal was satisfied that there is a need to appoint someone to manage FMK’s affairs and that it is in his best interests that a financial management order be made.

Who should be appointed as financial manager?

34. In appointing a financial manager, as in making all other orders under the Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Act.

35. Section 25M of the Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person’s estate or may commit the management of the estate to the NSW Trustee and Guardian. In the absence of any available privet person, the Tribunal was satisfied that FMK’s estate should be committed to the NSW Trustee and Guardian.

Should a reviewable financial management order be made?

36. The Tribunal may determine that a financial management order should be reviewed within a specified time. In this matter, the Tribunal determined that the financial management order should be reviewed within three years, as this will allow time for FMK to mature and hopefully develop sufficient skills to be able to manage his own financial affairs.

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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: 11 October 2021