HYC

[2019] NSWCATGD 28

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

HYC [2019] NSWCATGD 28

Hearing dates:

13 December 2019

Date of orders:

13 December 2019

Decision date:

13 December 2019

Jurisdiction:

Guardianship Division

Before:

B Adamovich, Senior Member (Legal)

Decision:

The guardianship order for HYC made on 4 June 2018 has been reviewed. The order now is as follows:

 

1. The Public Guardian is appointed as the guardian.

 

2. This is a continuing guardianship order for a period of six months from 13 December 2019.

 

3. This order will not be reviewed at the end of the above period.

 

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

 

FUNCTIONS:

 

5. The guardian has the following functions:

 

a) Access

 

To decide what access HYC has to others and the conditions of access.

 

b) Accommodation

 

To decide where HYC may reside.

 

CONDITION:

 

6. The condition of this order is:

 

a) Standard Condition

 In exercising this role, the guardian shall take all reasonable steps to bring HYC to an understanding of the issues and to obtain and consider her views before making significant decisions.

Catchwords:

GUARDIANSHIP – review of guardianship order – end of term review of guardianship order – whether guardianship order should be renewed – subject person improving in their decision-making capacity – need for a guardianship order reduced - remaining need for accommodation and services functions – guardianship functions reduced – public guardian appointed – non-reviewable order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14, 14(2)

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

007: Review of Guardianship Order

  HYC (the person)
NSW Public Guardian (appointed guardian)

Representation:

Nil

File Number(s):

NCAT 2016/00392294

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

REVIEW OF GUARDIANSHIP ORDER

1. These are the reasons for the decision of the Tribunal as set out above.

2. In all matters before the Tribunal the welfare and interests of the subject person are paramount.

Background

3. HYC is a 21-year-old woman who has lived in supported accommodation managed by a healthcare service provider at Northwest Sydney since July 2018. Before this she lived with her mother, NAQ, and her stepfather in their unit at South Sydney. HYC has a son, Z, and a daughter, Y, who are both in out of home care.

4. On 17 August 2016, applications for guardianship and financial management for HYC were received from a case manager with Family and Community Services. HYC has been subject to guardianship and financial management orders since 8 December 2016. The NSW Trustee and Guardian is assisting HYC to apply for a disability support pension.

5. Most recently, on 4 June 2018 the Public Guardian was appointed for 18 months with the functions of access, accommodation (including the authority to call upon others to implement accommodation decisions), health care, medical and dental consent, services and legal services.

6. This is the statutory end of term review of that order. These reasons for decision should be read in conjunction with previous reasons for decision of the Tribunal in respect of HYC.

The hearing

7. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

What did the Tribunal have to decide?

8. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.

9. The questions to be considered by the Tribunal are:

• Is HYC 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?

• Who should be the guardian?

• How long should the order last?

Is HYC 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?

10. Section 14 of the Guardianship Act 1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she 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”: Guardianship 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: Guardianship Act, s 3(2).

11. When the previous order was made, the Tribunal found that as a result of mild intellectual disability and post-traumatic stress disorder, HYC was unable to make some important life decisions. There is no new evidence in relation to this issue.

12. The Tribunal is satisfied that HYC continues to have a disability which prevents her making some 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 if so, what order should be made?

13. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further guardianship order:

1. the views (if any) of:

1. the person;

2. the person’s spouse;

3. the person’s carer;

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.

14. 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 Guardianship Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

The views of the HYC

15. HYC participated in the hearing. She told the Tribunal that she is happy in her accommodation placement and that the access arrangements with her mother are working well. She aims to gain employment and ultimately live independently. She was happy for the order to continue for a further period of time to ensure that the access plan continues to work for her and that she feels more confident in her ability to make access and accommodation decisions for herself in the future.

The views of NAQ

16. NAQ attended the hearing and said that she supported the views of HYC.

The views of support workers

17. Ms X is the team leader at the group home. She told me that HYC is appropriately placed and is doing very well. She participates in a community participation program and is able to articulate her views and goals. HYC works closely with her National Disability Insurance Scheme (NDIS) support coordinator to identify what services and supports will assist her in meeting the goals identified in her NDIS plan.

18. Ms X said that access plan is working well, however, has only recently been adhered to. For this reason, she recommended that the access and accommodation functions be continued for a short period of time so that HYC can work on her confidence in making her own decisions in these areas in the future. Behaviour clinicians from a consultancy firm have recommended a transitional period over the next six months to see if the restrictions around access can be faded out. Ms X considered that there was no need for the other functions to be continued.

The views of the Public Guardian

19. Ms Janelle Sayers provided the Tribunal with a report dated 11 December 2019 and participated in the hearing. Ms Sayers has been HYC’s guardian for the past three years and commented that HYC’s growth and development during this period has been phenomenal.

20. Ms Sayers said that the Public Guardian has made two access decisions during the term of the current order for HYC in relation to her mother, NAQ. Initially there were some difficulties in adhering to the plan, however, recently the plan has been working well and contact between HYC and her mother is very positive. HYC has good support from her support coordinator, support workers and behavioural clinicians in order to be able to negotiate safe and appropriate access to people in her life. Due to the only recent adherence to the access plan and to ensure that HYC feels confident in making access decisions for herself in the future, the Public Guardian recommended that this function be continued for a short period of time.

21. Ms Sayers told the Tribunal that HYC’s accommodation was made permanent during the term of the order and it was a decision made by HYC. HYC has a goal of living independently in the future and the Public Guardian believes that HYC can be supported to work towards these goals and has the capacity to make these decisions herself. To ensure that there are systems and mechanisms in place to support HYC’s confidence in making accommodation decisions, the Public Guardian recommended that the accommodation function be continued for a short period of time.

22. The Public Guardian was provided with the healthcare and medical and dental consent functions at a time that HYC was pregnant. The Public Guardian has made no decisions in these areas and has been advised by treating medical professionals that HYC has the capacity to make decisions for herself. If she was unsure, Ms Sayers considered that HYC has the capacity to work with her current supports to make informed decisions. The Public Guardian recommended that these functions be lapsed.

23. At the time of the last hearing the Public Guardian was appointed with the legal services function to ensure that HYC was able to access appropriate legal advice regarding future care arrangements for her children. The Public Guardian has made no decisions under this function as HYC has been well supported to ensure that she is legally represented in all care proceedings in relation to Z and Y. This function should be lapsed.

24. Ms Sayers said that HYC accesses a variety of services and supports through her NDIS plan. Although the Public Guardian has formally made decisions regarding services, HYC works closely with her support coordinator to identify what services would assist her to achieve her NDIS goals. HYC has a dynamic and appropriate support network in place to assist her with the continuation of current services and the identification of new services if required in the future. The Public Guardian recommended that this function be allowed to lapse.

Can services practicably be received without an order?

25. I was satisfied that HYC is able to receive adequate services without an order.

Will an order impact the preservation of family relationships?

26. I was satisfied that a further order would not impact HYC’s family relationships.

Will an order impact HYC’s cultural or linguistic environment?

27. This was not a relevant factor in the circumstances in which HYC is placed.

Consideration

28. I was satisfied that for a short period of time HYC needs a substitute decision maker in the areas of accommodation and access to ensure that she develops confidence in her own ability to make decisions in these areas. I was satisfied that HYC can be supported informally to make decisions about her medical and dental treatment, her healthcare, legal services and the services she is to receive.

29. I therefore decided that the guardianship order should be renewed and varied with the functions of accommodation and access attached to an order.

Who should be the guardian?

30. The Public Guardian was appointed as the guardian on the last occasion. There was no private person proposed to replace the Public Guardian and I was satisfied that the appointment of the Public Guardian should continue.

How long should the order last?

31. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. In view of the evidence I was satisfied that the order should be for a period of six months.

Should the order be non-reviewable?

32. I accepted the submission of the Public Guardian that the order should not be reviewed upon its expiration. This was supported by the other participants in the hearing.

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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: 28 May 2020