In the Matter Of Dylan (Guardianship)

[2021] ACAT 91

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

IN THE MATTER OF DYLAN (Guardianship) [2021] ACAT 91

GT 109/1996

Catchwords:               GUARDIANSHIP – application for removal of a guardian – requirements for removal – relevance of views of protected person – relevance of adverse effect on protected person – decision-making principles apply also to decisions of the Tribunal – relevance of who will be the new guardian – application for and appointment of new guardian

Legislation cited:        Guardianship and Management of Property Act 1991 ss 4, 5A, 9, 10, 28, 31

Human Rights Act 2004 ss 8, 10, 28

Cases cited:Holt v Protective Commissioner (1993) 31 NSWLR 227

In the matter of AB [2017] ACAT 67
In the matter of Jane [2019] ACAT 18
In the matter of LQL [2018] ACAT 53

M v M [2013] NSWSC 1495
Re LSC and GC [2016] NSWSC 1896

Tribunal:  Senior Member R Orr QC

Date of Orders:  10 August 2021

Date of Reasons for Decision:      28 September 2021

REASONS FOR DECISION

1. These proceedings began as an application for removal of a guardian under the Guardianship and Management of Property Act 1991 (Guardianship Act). There were at that time three personal guardians for Dylan.[1] He applied for removal of one of them, whom I will call Guardian 1, who had been very active in supporting Dylan. There were two other guardians (whom I will call Guardian 2 and Guardian 3), but they do not live in the ACT and had been less active guardians. The Public Trustee and Guardian (PTG) was Dylan’s financial manager.

   [1] Given that this matter concerns a contested guardianship hearing and considered significant medical and other personal information, in these reasons the Tribunal has chosen a name for the protected person that bears no resemblance to his real name, and has not disclosed facts which would enable him to be identified, and has also used titles for the current guardians and not disclosed facts which would enable them to be identified.

2. During the consideration of this matter, Guardian 1 indicated that she was no longer willing to carry on as guardian. Given this, during the proceedings Dylan also applied for the appointment of the PTG as his guardian.

Summary of Tribunal decision

1. This case raised difficult issues. A guardian can be removed if they are no longer suitable (section 31(1)(a) of the Guardianship Act). The matters to be considered in appointing a guardian are relevant to this decision (section 10(4)) as are the decision-making principles (section 4).

2. It is clear that under the Act Dylan’s views and wishes as to who his guardian should be are relevant, and it was clear he did not want Guardian 1 to be his guardian. In his view he and Guardian 1 were no longer compatible.

3. But Guardian 1 has provided significant assistance to Dylan, particularly in relation to his dealings with his service provider and health issues. She and Dylan’s service provider have played a significant role in enabling Dylan to look after himself to some extent, and to live by himself in the community. The evidence suggested he has a tenuous hold on this lifestyle, is vulnerable, that his health is deteriorating and he is generally isolated. Importantly, there is some risk that the removal of Guardian 1 will mean that the services provided to Dylan will be adversely affected, and that his ability to live by himself in the community may be put in jeopardy.

4. On this basis at the end of the first hearing I was reluctant to revoke the appointment of Guardian 1 if that left Guardians 2 and 3 as Dylan’s guardians. In my view, that would have given effect to Dylan’s wishes, but was likely to significantly adversely affect his interests (section 4(2)(a)).

5. But I recognised, as did Guardian 1, that if they could not improve their relationship, then it may be necessary for her to resign or her appointment be revoked.

6. But at the second hearing Guardian 1 indicated that she was no longer willing to continue as guardian. I therefore encouraged Dylan to apply for the PTG to be his guardian. This application was heard at a third hearing. I have on this basis revoked the appointments of Guardians 1, 2 and 3, and appointed the PTG as Dylan’s guardian. This will provide an opportunity for Dylan and Guardian 1 to rebuild their relationship outside of the guardianship context. In my view, Dylan will need the support of Guardian 1 and his family into the future.

7. Orders to this effect were made on 10 August 2021. These reasons set out in more detail the basis for those orders.

Applications

1. An application for removal of a guardian was made by Dylan on 28 September 2020 (application for removal). No challenge was made to his ability to do so. He was assisted by ACT Disability Aged and Carers Advocacy Service (ADACAS) to do so. The application for removal stated in summary that Dylan felt he cannot trust Guardian 1, is not respected by her and that his views are not included in her making decisions about his current and future living arrangements. Dylan feels he has a poor relationship with Guardian 1. He says he has blocked her on his phone. It is said that the poor relationship is harming his wellbeing. He gives two examples of problems with his dealings with Guardian 1. The first is said to be that Guardian 1 cleaned out and removed items from his home without permission. The second is said to be that he has been prescribed special shoes. The shoes have been made but he does not wear them. It is said that “his preferences were not taken into account when these were ordered and made.” Dylan generally confirmed this position at the hearing,[2] except in relation to the shoes. He indicated that he would wear the shoes.

   [2] Transcript of proceedings 2 February 2021 pages 6-8 and 47

2. In addition to Guardian 1, there were two other guardians. Guardian 2 did participate in the hearing and her position is discussed below; she has now moved away from the ACT. Guardian 3 lives and works interstate and did not participate in the hearings.

3. During the hearings of this matter, an application dated 1 June 2021 was made by Dylan, with the support of ADACAS, for the appointment of the PTG as his guardian.

Hearings

1. The first hearing was held on 2 February 2021. The evidence given at this hearing is discussed below.

2. A second hearing was held on 11 May 2021, at which evidence was given of some events after the first hearing. At this hearing Guardian 1 indicated that she was no longer willing to carry on as guardian. In light of this, and the issues noted below, I encouraged Dylan to apply with assistance for the appointment of the PTG as his guardian.

3. He did this, and a third hearing was held on 10 August 2021 to consider this application.

Evidence and submissions

ADACAS

1. ADACAS provided to the Tribunal a letter dated 24 December 2020. A representative attended the first hearing and provided very useful evidence and submissions. They had met with Dylan on numerous occasions, and had had conversations with other parties. They confirmed that Dylan wanted to remove Guardian 1 as his guardian and did not want her to make decisions for him.

2. ADACAS used supported decision making processes to explore Dylan’s preferences. The document provided indicates that Dylan thinks that he has the right to make decisions for himself and feels that this right is not respected by Guardian 1. It indicates that Dylan believes that currently he has a relationship breakdown with Guardian 1. It also indicates that Dylan recognises that some bad things will occur if Guardian 1 is no longer his guardian. In summary, these are that he will have to organise for himself the things Guardian 1 currently does, he will lose an advocate for himself when his NDIS is planned, and he may have poor health due to his poor eating habits.

3. ADACAS also provided an overview of Dylan’s current circumstances. He lives independently, and has done so for a number of years. He has significant interaction with his support workers, who come to his house four times a day. He expresses preferences for who comes and will ring his support co-ordinator to express his views.

4. He has had several recent admissions to hospital and has needed the assistance of a guardian to communicate with his treatment team. He needs assistance to fill out forms, talking and communicating about his prescription medication, arranging appointments, and transport and communication when he visits specialists.

5. A representative of ADACAS indicated that they were engaged by Dylan in about July last year (2020) in relation to this issue. In summary they said that Guardian 1 has been doing a wonderful job, but it is Dylan’s wish not to have her as his guardian, and they support that. They indicated that they were worried about the services that he will receive without Guardian 1, but did not think he would need to go to a higher level of care at the moment.[3]

   [3] Transcript of proceedings 2 February 2021 pages 19-22

6. ADACAS also provided a report from Dr Vanessa Parletta of ORS Group Psychological Services dated 2 August 2019. This is a detailed report, but I mention a few key issues. The report was obtained by his support co-ordinator from Community Options (Community Options or primary carer), his primary care provider, in relation to three issues, Dylan’s social and communication problems; his refusing to engage in any household chores; and his difficulty with budgeting/finances.

7. The report noted that Dylan has been diagnosed with cerebral palsy and dysphagia. It is noted that he reports he is in reasonable health but does experience recurrent chest infections and has had falls. The report contains significant information of an assessment of Dylan’s intellectual functioning. It is said that this is consistent with the DSM-V criteria for a moderate intellectual disability.

8. Dylan requires support from carers to access healthcare and follow through with medication and referrals. It is said that an Occupational Therapy report stated that Dylan requires someone familiar with him to assist with communication during all interactions with the community. It states that this difficulty communicating has negatively impacted on his treatment.

9. It is said that Dylan is considered to be very socially isolated and vulnerable. His current interactions are with his support workers and family/guardians. He engages in behaviours which are said to be inappropriate and put him at risk.

10. It is also said that Dylan prefers to make his own decisions, and once he has made up his mind it is difficult to assist him to change his mind. While he prefers to make his own decisions and to have his independence, his cognitive ability requires that he receive significant support for all important decisions. He does not like being told what to do, or having his decisions challenged, and examples given are when others attempted to discard some of his collected items or asked him to do household chores.

    Community Options

11. Community Options, his primary carer, provided a report to the Tribunal. They have been involved in Dylan’s care for a long time. This report sets out the NDIS services provided to Dylan, and notes that Community Options liaise with Guardian 1 in regards to monitoring these support services and to ensure that the cost of services fits within the allocated funds. Community Services also provide Dylan with service co-ordination. But they are not an emergency contact. Dylan currently uses Guardian 1 as his emergency contact, and she also accompanies him to medical appointments and she is able to speak with medical professionals. She also assists with financial matters.

12. Community Options noted that in the event that Guardian 1 is no longer Dylan’s guardian they cannot guarantee that the increased level of support required will be available. They stated that while Dylan may have the impression that Community Options will be available to assist him as a replacement for Guardian 1, this is not the case. They noted that they encourage and respect Dylan’s right to make choices and decisions, however they are mindful of the impact on the level of service should Dylan not have the support of Guardian 1.

13. In the hearing, representatives from Community Options stated that they, with the support of Dylan and his family, have been able to establish Dylan in an independent lifestyle that many in a similar condition have not been able to achieve. He has benefitted from having an active guardian, currently Guardian 1, who has always acted in his best interests. But without an active guardian who will occasionally say to Dylan that something is not appropriate, because that might infringe someone else’s rights and responsibilities, it will be hard to maintain support for him in the current environment. It was said that Dylan is in a unique circumstance; he is a very vulnerable man; that he can live independently was a credit to him, his family, and the ACT system; but he has a tenuous hold on his current lifestyle; that their organisation will not be able to replace what Guardian 1 brings to the table; Guardian 1 is available 24/7. It was said that they would fight hard to prevent Dylan having to give up his independent living, but that outcome would be a possibility. The more likely outcome was that he will not be able to get access to the help and assistance that he gets now.[4]

    [4] Transcript of proceedings 2 February 2021 pages 22-24

14. It was indicated that Dylan had tried to sack Community Options a number of times over the years because they disagreed with him, in particular in relation to what he wanted support workers to do. It was said that Dylan would have no support workers if he did not moderate his requests and behaviours, and if ‘there is no-one there to have those conversations then … [his] whole support structure becomes at risk’. Guardian 1 has fulfilled this role.[5]

    Guardian 1

    [5] Transcript of proceedings 2 February 2021 page 25

15. Guardian 1 attended the hearings and provided a range of information. At the first hearing she stated that it has always been her goal, and that of the other guardians, to help Dylan live independently. She said that the only time she mentioned he may need to be in residential care arose because of the special shoes issue. One of the other guardians had been dealing with the shoes. She took Dylan to an appointment and recounted that “the physiotherapist said that [Dylan] didn’t want to wear the shoes, and she [the physiotherapist] told [Dylan] at one point not to waste their time if he wasn’t going to wear his shoes … and I asked her to explain … what would be his outcome if he did not wear the shoes and the outcome is that … [he] will be in a wheelchair.” Guardian 1 said that in the end, when he had all the facts, Dylan pursued the shoes. She said that she cannot force him to wear the shoes, it is his choice.[6]

    [6] Transcript of proceedings 2 February 2021 pages 11-12

16. In relation to the cleaning, she said that someone else did a spring cleaning of Dylan’s home, and her involvement was the removal of things from the unit, rather than paying someone to come and take them away.[7]

    [7] Transcript of proceedings 2 February 2021 page 12

17. At the first hearing she agreed that her relationship with Dylan was not good at this time. She suggested that with the bushfires, the COVID-19 pandemic, and the fact that the other guardians were not available it was up to her to take on the prime guardianship role, and she had had to say to Dylan “you can’t do some things” and the reasons why. She mentioned later that Dylan’s inappropriate relations with carers and others and non-compliance with COVID-19 restrictions as two areas where she had to talk to him. She realises Dylan does not want her in his life, but is of the view that this is because she is the one who is saying: no, your behaviour is inappropriate.[8]

    [8] Transcript of proceedings 2 February 2021 page 32

18. One of the areas where she helps Dylan is in relation to carers and his care provider. She said he has a lot of issues with carers and she has to try to resolve these.[9] She said that Dylan wanted specific types of carers and he thought he should get what he wants, but she had to say that that is not the case and that there are boundaries.[10] She thought that without her assistance Dylan’s relationship with his carers would break down.[11]

    [9] Transcript of proceedings 2 February 2021 page 14

    [10] Transcript of proceedings 2 February 2021 pages 20 and 26

    [11] Transcript of proceedings 2 February 2021 page 29

19. She said that often the problem was that Dylan refuses the level of care that he needs. Community Options confirmed that there were many incidents where Dylan has not let a worker in because of some attribute they had.[12]

    [12] Transcript of proceedings 2 February 2021 pages 48-49

20. Another area where Guardian 1 assists is in health matters. She has had to make sure that he is being treated appropriately in hospital. She said on numerous occasions he has been sent home from hospital with medication that is inappropriate for him and she has had to assist in resolving this.[13]

    [13] Transcript of proceedings 2 February 2021 pages 49-50

21. She stated that Dylan’s critical needs are increasing dramatically as he ages, and this will make living independently difficult. The issue with the shoes illustrates this.[14] The representative from his carer agreed that his health is deteriorating, and that it is taking a lot of hard work from a range of people to keep Dylan living independently; he did not think Dylan could afford to lose Guardian 1.[15]

    [14] Transcript of proceedings 2 February 2021 page 28

    [15] Transcript of proceedings 2 February 2021 page 29

22. At the first hearing, Guardian 1 stated that she thought it was in Dylan’s best interest to have her as guardian, but that this will not work if Dylan does not agree with it.[16]

    [16] Transcript of proceedings 2 February 2021 pages 37, 44

23. At the second hearing, Dylan raised some further issues in relation to his relationship with Guardian 1. Guardian 1 did not agree with the factual matters raised, but indicated she was unwilling to continue as a guardian.

    Guardian 2

24. A second current guardian, Guardian 2, also attended the first hearing. She has been in and out of Dylan’s life for a number of years. She noted Guardian 1 has been doing most of the work assisting Dylan, she hasn’t been available and in fact she is moving to Queensland soon so she will be even less available. She stated that it was hard going helping Dylan, especially when you have to say no to things to which anyone would say no to. She said she did not know what would happen in the long term because his health complications are getting more significant. She thought that Dylan did not really understand what not having Guardian 1 on board would mean.[17]

    [17] Transcript of proceedings 2 February 2021 pages 30-31

25. She said that she had spoken to Dylan about the possibility of having the PTG take over as guardian, though she thought this would go against him. She did not think that Dylan was completely aware how this was all going to pan out if he wanted to continue living independently; she could not see that as being possible.[18]

    [18] Transcript of proceedings 2 February 2021 page 39

26. At the third hearing, evidence was provided that Guardian 2 was not willing to continue as guardian.

    Guardian 3

27. Guardian 3 is a relative of Dylan’s but now lives and works interstate. He did not participate in the hearings.

    Neighbour

28. A neighbour and friend of Dylan’s also attended the hearings. She said she could not take on responsibility as a guardian but wherever she can she helps Dylan. One night she rang the ambulance for him when he was in a dreadful state. [19]

    PTG

    [19] Transcript of proceedings 2 February 2021 page 42

29. PTG did not attend the first hearing, but did very usefully attend the third hearing at which their appointment was considered.

Guardianship Act

1. The Guardianship Act provides for removal of guardians in section 31(1), which relevantly states in paragraph (a) that the Tribunal may remove a person appointed as guardian if the person “is no longer suitable to be a guardian”. The concept of suitable is not defined. But factors that the Tribunal must take into account when assessing suitability for appointment are listed in section 10(4). Section 10(3) provides that a person may be appointed guardian only if satisfied that the person will follow the decision-making principles in section 4 and is otherwise suitable for appointment.

1. The other grounds for removal in section 31(1) are that the person is no longer competent; the person has failed to exercise functions or powers; the person has contravened a provision of the Act. None of these have been suggested or made out in this case.

2. There is no list of relevant considerations in relation to removal, but as noted there is for whether a person is suitable for appointment, in section 10(4), and in my view the list of considerations regarding suitability for appointment in section 10(4) is also relevant to whether a person is no longer suitable for the purposes of removal. There are also decision-making principles in section 4 which are relevant. I consider each of these.

3. This is the approach taken in In the matter of LQL,[20] which also notes earlier relevant Tribunal decisions,[21] and other helpful decisions from courts in other jurisdictions.[22]

   Views of the protected person (section 10(3)(a))

   [20] [2018] ACAT 53 (LQL)

   [21] In the matter of AB [2017] ACAT 67

   [22] Holt v Protective Commissioner (1993) 31 NSWLR 227, which sets out a checklist of considerations at 241-243, see LQL at [27]; M v M [2013] NSWSC 1495, which also provides some guidelines, see LQL at [28]; Re LSC and GC [2016] NSWSC 1896.

4. As noted, the application for removal was by the protected person who made it clear that he did not want Guardian 1 as his guardian. There was no suggestion by Dylan or anyone else that he should not have a guardian.

5. As I have noted, the examples given in the application do not support the removal of Guardian 1. In particular there were others involved in both examples, and in particular in relation to the shoes Guardian 1 was assisting Dylan with a serious health issue which, if not addressed, would put his independence in jeopardy, but was leaving the final decision to him. He seemed to recognise that the shoes will help him. It seems that generally the conflict may have arisen because Guardian 1 raised with Dylan important and serious issues about his relationship with his carers and his health, but with which he did not agree.

6. Dylan was willing to accept Guardians 2 and 3 as his ongoing guardians. At the second hearing, he said he was willing for the PTG to be his guardian, and his application for this was considered at the third hearing.

   Desirability of preserving existing relationships with family and other carers (section 10(3)(b))

7. Dylan and Guardian 1 have an existing family relationship. Their current falling out has affected this. Part of this seems to be because Guardian 1 is his guardian, and not just a family member.

8. As noted at the second hearing, Guardian 1 indicated she was unwilling to continue as guardian, and hoped that her relationship with Dylan would improve if she was no longer his guardian.

   Whether the person is compatible with the protected person (section 10 (3)(c))

9. Dylan clearly thinks that Guardian 1 is now incompatible with him. As noted it seems that at least in part this incompatibility has arisen because Guardian 1 raises with Dylan important and serious issues about his relationship with his carers and his health, but with which he does not agree.

10. As noted, Dylan was willing to accept Guardians 2 and 3 as his ongoing guardians, and then the PTG.

    Whether the person lives in the ACT (section 10(3)(d))

11. Guardian 1 lives in the ACT. Guardians 2 and 3 now do not.

    Whether the person will be available and accessible (section 10 (3)(e))

12. Guardian 1 has been very available and accessible to Dylan. Guardians 2 and 3 have not been, and will not be, so available and accessible.

    Nature of the functions to be exercised (section 10(3)(f))

13. The functions exercised by Guardian 1 have principally been in relation to managing issues between Dylan and his primary service provider and carers, and managing health issues. Some of these do not necessarily require a guardian, but some do. Some could in theory have been managed by Dylan himself, at least with assistance, but this has not apparently been possible.

14. These functions are very important to Dylan. He lives independently, but he has a tenuous hold on this arrangement. He is vulnerable and his health is deteriorating. He is generally isolated, and his carers are some of his main contacts. He is sometimes difficult for them to manage, and behaves inappropriately. Guardian 1 has performed an important role in managing this.

15. Those who support Dylan said they will fight hard to prevent him having to give up his independent living, but that without Guardian 1 that outcome would be a possibility. The more likely outcome is that he will not be able to get the access to help and assistance that he gets now.

    Whether the interests of the guardian are likely to conflict with the protected person’s interests (section 10(3)(g))

16. There is no conflict of interest between Guardians 1, 2 and 3 and Dylan.

    Consent

17. It is also relevant to note that a person must not be appointed guardian or manager unless they consent in writing (section 10(1)), and a guardian may resign in writing (section 28). At the first hearing, Guardian 1 indicated that if the arrangement continued not to work she would consider resigning.

18. At the second hearing she indicated that she was no longer willing to continue to be a guardian. At the third hearing, Guardian 2 also indicated she was unwilling to continue.

    Decision-making principles (section 4)

19. Section 4 of the Act also sets out some decision-making principles which apply to “the exercise by a person (the decision-maker) of a function under this Act in relation to a person with impaired decision-making ability”. It appears that these principles apply also to the Tribunal when it makes relevant decisions.

20. The first is that the “protected person’s wishes, as far as they can be worked out, must be given effect to, unless making the decision in accordance with the wishes is likely to significantly adversely affect the person’s interests”.[23] The person’s interests are set out in section 5A and include protection of the person from harm, prevention of physical and mental deterioration, the ability the protected person to self-care, to live in the general community, to participate in community activities, and to maintain the non-harmful aspects of the person’s preferred lifestyle, and the promotion of financial security.[24]

    [23] Guardianship Act section 4(2)(a); this approach is also supported by sections 8, 10(2) and 28 of the Human Rights Act 2004.

    [24] In the matter of Jane [2019] ACAT 18 at [52]-[74]

21. Here the protected person has expressed his wishes. The issue is, however, whether acting on these wishes is likely to significantly adversely affect his interests. This is the issue which in effect was raised by Guardian 1 and the primary carer. It was suggested that removal of Guardian 1 may result in Dylan having to give up his independent living. This would certainly be a significant adverse effect. It was noted that the more likely outcome was that he will not be able to get the access to help and assistance that he gets now.[25] This would also be an adverse effect. When combined with Dylan’s tenuous lifestyle, vulnerability, deteriorating health and difficulty in managing his carers and health, this may be significant.

    [25] Transcript of proceedings 2 February 2021 pages 23-24

22. There are other related principles to this. Further the protected person’s life must be interfered with to the smallest extent necessary (section 4(2)(d)). As noted, the decision to remove Guardian 1 may well interfere with his life.

23. The protected person must be encouraged to look after themselves (section 4(2)(e)), and the protected person must be encouraged to live in the general community (section 4(2)(f)). With significant support, Dylan has been able to live independently. As discussed, the removal of Guardian 1 may put this at risk.

Balancing the issues after the first hearing

1. The factors in sections 10(4) and 4(2) need to be considered and balanced. Some are pulling in different directions, which made this a difficult matter to resolve.

2. As to the position after the first hearing, it was clear that Dylan’s views and wishes as to who his guardian should be were relevant, and it was clear he did not want Guardian 1 to be his guardian, and that in his view they were not compatible (sections 4(2)(a), 10(4)(a) and (c)). While this was an important consideration, it was not the only consideration.

3. There was no basis for thinking that Guardian 1 had not performed the role of guardian appropriately. Guardian 1 had (as she admitted) talked bluntly to Dylan at times, but she had also provided very significant assistance to Dylan, particularly in relation to his dealings with his service provider and health issues. Indeed the issues which seem to have caused tension between them have arisen from her efforts to get Dylan to look after his health, and to act reasonably and appropriately in relation to others.

4. She and Dylan’s primary carer have played a significant role in enabling Dylan to look after himself to some extent, and live in the community (section 4(2)(e) and (f)). There was no basis at all for thinking that Guardian 1 was not suitable, except for the views of Dylan.

5. Importantly there was a real risk that the removal of Guardian 1 would mean that Dylan’s life would be interfered with and the services provided to him would be affected (section 4(2)(d)). The evidence suggested he has a tenuous hold on this lifestyle, is vulnerable, that his health is deteriorating and he is generally isolated. The removal may have significantly adversely affected Dylan’s interests, and put at risk his ability to live in the community (sections 4(1)(a), (d) and (f)). It is true that the fact that Guardian 1 had the role of guardian seemed to be interfering with her relationship with Dylan (section 10(4)(b)), but it was also of significant benefit to Dylan.

6. The other guardians did not live in the ACT, and would not be as available and accessible as Guardian 1 had been and would not be able to exercise the functions which Guardian 1 had, and which seemed necessary (section 10(4)(d), (e) and (f)).

7. For these reasons, I would not have been prepared to revoke the appointment of Guardian 1 at the end of the first hearing. I recognised, as did Guardian 1, that if she and Dylan could not improve their relationship, then it may have been necessary for her to resign or her appointment be revoked. But I thought that there should at least be some further opportunity to see if the relationship could be improved.

Balancing the issues after the second and third hearings

1. But there were significant changes at the second and third hearings. First, Guardian 1 indicated that she was not willing to continue. Both she and I thought that this might assist in getting her relationship with Dylan back onto a more appropriate footing.

2. Guardian 2 indicated that she was not willing to continue, and Guardian 3 played no part in the proceedings.

3. I therefore suggested at the second hearing that Dylan should consider seeking to have the PTG appointed as guardian. He seemed to agree to this and with the assistance of ADACAS then made an application for the appointment of the PTG as his guardian.

4. The PTG indicated that it accepted this as an appropriate solution. The PTG was already Dylan’s financial manager.

5. In my view such a new arrangement will have some significant risks for Dylan. But this will provide an opportunity for Dylan and Guardian 1 to rebuild their relationship outside of the guardianship context. In my view Dylan will need the support of Guardian 1 and his family into the future.

6. On this basis alone, I thought that Guardians 1, 2 and 3 were no longer suitable to be guardians for Dylan, and that the PTG should be appointed guardian.

Conclusion

1. Therefore I ordered that Guardians 1, 2 and 3 be removed as guardians for Dylan, and that the PTG be appointed his guardian.

   ………………………………..

   Senior Member R Orr QC

Date(s) of hearing 2 February 2021, 11 May 2021, 10 August 2021