HKO

[2016] NSWCATGD 14

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	HKO [2016] NSWCATGD 14
Hearing dates:	25 August 2016
Date of orders:	25 August 2016
Decision date:	25 August 2016
Jurisdiction:	Guardianship Division
Before:	Simpson J, Senior Member (Legal) Martin M, Senior Member (Professional) Porter L, General Member (Community)
Decision:	Guardianship order made for 3 years; Public Guardian appointed to make decisions about accommodation, health care, medical and dental consent and services.
Catchwords:	GUARDIANSHIP – National Disability Insurance Scheme nominee provisions – guardianship needed to protect person’s interests through NDIS first and second planning processes and transfer of current accommodation service to the non-government sector
Legislation Cited:	Guardianship Act 1987 (NSW), ss 4, 14(2) National Disability Insurance Scheme Act 2013, s 18 National Disability Insurance Scheme (Becoming a Participant) Rules, rule 2.1 National Disability Insurance Scheme (Nominees) Rules 2013 (Cth))
Cases Cited:	IF v IG & Others [2004] NSWADTAP 3 KCG [2014] NSWCATGD 7
Category:	Principal judgment
Parties:	Mr HKO(subject person) Ms MN (applicant) The Public Guardian
Representation:	Nil
File Number(s):	8311
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS for decision

What the Tribunal decided

1. The Tribunal appointed the Public Guardian for three years to make decisions for Mr HKO about accommodation, health and services issues.

Background

2. Mr HKO is a 63-year-old man with intellectual disability who lives at an ADHC facility on the Central Coast of NSW. Mr HKO has no involved family or advocate and Ms MN, residential unit nurse manager, applied for a guardian to be appointed to make decisions for Mr HKO as he transitions into the National Disability Insurance Scheme (NDIS).

3. Mr HKO’s financial affairs are already managed by the NSW Trustee.

What did the Tribunal have to decide?

4. The Tribunal had to decide:

1. Does Mr HKO have a disability which prevents him from being able to make some important life decisions?

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

3. Who should be the guardian?

4. How long should the order last?

5. In deciding under (2) above whether to make a guardianship order, the Tribunal needed to take account of all relevant factors, including those listed in section 14(2) of the Guardianship Act 1987 (NSW). These relate to the views of Mr HKO, any spouse and unpaid carer, preserving family relationships, preserving cultural and linguistic environments and the practicability of services being provided without a guardianship order. The Tribunal could be guided by the principles in section 4 of the Guardianship Act, in particular treating Mr HKO’s interests as its paramount consideration. The Tribunal ultimately has a broad discretion whether to make a guardianship order (IF v IG & Others [2004] NSWADTAP 3).

Does Mr HKO have a disability which prevents him from being able to make some important life decisions?

6. Mr HKO…