In the Matter Of Toby (Guardianship) - [2020] ACAT 90

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

IN THE MATTER OF TOBY (Guardianship) [2020] ACAT 90

GT 66/2016
Catchwords: GUARDIANSHIP – application by protected person’s mother to be appointed as his guardian and manager – previous guardian and management order made in New South Wales and registered subsequently in the ACT – protected person lives with mother in ACT – protected person’s wife lives in NSW – wife and mother estranged – what powers are appropriate for guardian – proposed power to regulate access to protected person – whether access power is appropriate – whether Tribunal has power to grant access power to guardian – who should exercise access power – whether protected person needs a guardian for his property other than finances in the ACT – whether protected person’s mother is suitable to be appointed as his guardian and manager

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 30, 39, 60

Guardianship Act 1987 (NSW) s 16
Guardianship and Management of Property Act 1991 ss 4, 5, 5A, 6, 7, 7B, 8, 9, 10, 11, 12, 19
Legislation Act 2001 ss 130, 139
NSW Trustee and Guardian Act 2009 s 41
Public Trustee and Guardian Act 1985 ss 13, 14

Cases cited:In the Matter of Renée [2019] ACAT 116
Negri v Secretary, Department of Social Services [2016] FCA 879

Tribunal: President G Neate AM
Senior Member R Bailey

Date of Orders:           17 March 2020
Date of Reasons for Decision:           1 May 2020
Date of Reasons for Decision published:   9 November 2020

AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL GT 66/2016

IN THE MATTER OF TOBY

TRIBUNAL: President G Neate AM
Senior Member R Bailey

DATE:17 March 2020

ORDER

Appointment of Guardian

The mother of Toby[1] is appointed guardian for Toby (the protected person) with the following powers:
[1] Toby is not his real name. We have used a pseudonym to preserve his privacy and the privacy of others
(a)to decide where, and with whom the protected person is to live;
(b)to decide what further education or training the protected person is to receive;
(c)to give any consent required for a medical procedure or other treatment (other than a prescribed medical procedure);
(d)to give any consent required for the protected person to receive services under the National Disability Insurance Scheme;
(e)to bring or continue legal proceedings for or in the name of the protected person;
(f)to make other personal decisions needed to ensure the protected person’s health and welfare needs are met and to protect him from unreasonable risks to his health and welfare;
(g)to do things necessary to give effect to decisions about the matters set out above, including (but not limited to):
(i)     giving or receiving information; or
(ii)     giving consent to investigations and assessments; or
(iii)    participating in negotiations; or
(iv)    signing documents.
The guardian must notify the Tribunal of any changes to the address of, or of any other significant change in circumstances of, herself or of the protected person.
The Public Trustee and Guardian is appointed as guardian with the power to make decisions about access to the protected person by the wife of Toby and the father of Toby including decisions about when, where and in what circumstances such access is to occur.
The Tribunal will review this appointment on its own initiative before 17 March 2023.

Appointment of Manager

The mother of Toby is appointed as manager to manage all of the property other than finances of Toby (the protected person), located in the Australian Capital Territory with the following powers:
(i) all the powers the protected person would have been entitled to exercise if he were legally competent to exercise powers in relation to his property, located in the Australian Capital Territory himself.
The Tribunal will review this appointment on its own initiative before 17 March 2023.
The manager must notify the Tribunal of any changes to the address of, or of any other significant change in the circumstances of, herself or of the protected person.

The Tribunal notes

The mother of Toby has agreed to provide or arrange for the provision of information about significant changes to the protected person’s condition or circumstances to the wife of Toby.
…………Signed…………..
President G Neate AM
For and on behalf of the Tribunal

Introduction

On 17 March 2020, the ACT Civil and Administrative Tribunal (the Tribunal) appointed the mother of Toby as his guardian and manager. Toby’s mother (with the NSW Public Guardian) was one of his guardians under an order made by the New South Wales Civil and Administrative Tribunal (NCAT) on 27 March 2019.
The Tribunal made the orders after a hearing at which the mother of Toby, as the applicant for the orders, was present and was legally represented by counsel. The wife of Toby, participated by telephone and was represented by her counsel who appeared as a friend.[2] Also participating by telephone was, a senior guardian from the NSW Public Guardian, and a senior guardian from the ACT Public Trustee and Guardian (the PTG).
[2] It appears that the lawyer, a barrister in New South Wales, applied to be a friend in the present application so that it was not necessary to seek leave for his clients to be legally represented: Transcript of proceedings 17 March 2020 pages 3, 11-12. The basis for that application may have arisen from a misunderstanding of the applicable law in the ACT. which contrasts with the requirement for leave to be granted for legal representation before the NCAT. As noted at the hearing, section 30 of the ACT Civil and Administrative Tribunal Act 2008 provides that a person may, in relation to an application before the Tribunal, appear in person or be represented by a lawyer or someone else (other than a person prescribed under the Rules)
The mother of Toby has asked the Tribunal for written reasons for its decision because “As this matter has a long history and is complex and, has been controversial at times, I’d like to request a copy of the written reasons for the Tribunal’s decision for my records please.”
The application for the orders was made in somewhat unusual circumstances, and some parts of the orders are unusual. Consequently, rather than simply provide a transcript of the hearing on 17 March 2020,[3] which includes findings and rulings on relevant points and oral reasons for them made throughout the hearing, it is appropriate to provide more formal written reasons for decision which reflect, and in some respects give a fuller account of, the reasoning behind those rulings.
[3] See ACT Civil and Administrative Tribunal Act 2008 section 60(2)
When preparing these written reasons for decision, the Tribunal kept in mind that it was permitted to elaborate on its oral reasons and improve their expression, so long as the substance of the reasons was not altered, and the reasoning remained consistent.[4]

Background

[4] See Negri v Secretary, Department of Social Services [2016] FCA 879 at [12]-[29]

The mother of Toby’s application followed a series of applications in New South Wales before the NCAT (not all of which went to a hearing) and the NSW Supreme Court. Those proceedings were time-consuming, demanding on the parties and their representatives, and expensive.
The parties to the proceedings before the Tribunal are well aware of the history of those previous proceedings, and of Toby’s circumstances which prompted them. The extensive written material provided to the Tribunal sets out those circumstances and the history and outcomes of the proceedings in considerable detail. It is not necessary for present purposes to repeat that material. It is sufficient to note salient points.
In July 2015, during a hospital admission for a medical procedure, Toby sustained a severe brain injury. He has been diagnosed with severe cognitive impairment, bilateral neurosensory hearing loss, seizures and behavioural disturbance with agitation. He requires feeding via a PEG tube.[5]
[5] See the medical reports referred to by the NCAT in the reasons for decision in relation to Toby dated 17 October 2018 at [18]-[22]
Toby and his wife lived in premises on the mother of Toby’s property in the ACT. The mother of Toby asked the wife of Toby to vacate the premises around mid-2017. For much of 2018, Toby was living in New South Wales in a group home, with his wife making decisions for him as his person responsible. During that period, there was a series of proceedings in the NCAT and the Tribunal about an enduring power of attorney and about guardianship and financial management in relation to Toby.
On 4 October 2018, Toby was taken to Westmead Hospital where he was diagnosed with severe malnutrition. The wife of Toby refused to allow him to have the recommended treatment and he was discharged from the hospital.
On 5 October 2018, Toby’s then general practitioner, made an urgent application to the NCAT for consent to medical treatment for Toby. Orders were made giving authority for Toby to receive high protein feeds.
On 17 October 2018, Toby was taken urgently to Westmead Hospital because of the effects of his malnutrition and he was admitted to the Intensive Care Unit. That day, the NCAT heard separate applications from the mother of Toby and the wife of Toby for appointment as Toby’s guardian and financial manager.
On 17 October 2018, the NCAT made a guardianship order giving the NSW Public Guardian for a period of four months the following functions: access, health care and medical/dental consent. Consideration of the application for the appointment of a financial manager was adjourned to a date to be fixed.
On 12 November 2018, the NCAT appointed the wife of Toby as financial manager for Toby for 12 months.
On 19 December 2018, a social worker made an application for the appointment of a guardian for Toby with respect to decisions about accommodation and services. The NCAT part-heard that application on 11 February 2019. At that hearing, the mother of Toby applied for revocation of the wife of Toby’s appointment as financial manager and applied for herself to be appointed.
On 27 March 2019, the NCAT made a 12 month guardianship order giving the mother of Toby guardianship functions in relation to Toby’s accommodation, health care, medical/dental consent and services, and giving the NSW Public Guardian the access function (the NCAT Orders). The NCAT revoked the wife of Toby’s appointment as financial manager, and appointed the mother of Toby. At that time there were proceedings in the NSW Supreme Court in which Toby made a claim of medical negligence against St Vincent’s Hospital. His claim was ultimately successful, and he received a settlement of more than $2 million.
Toby remained in Westmead Hospital from 17 October 2018 until 16 April 2019, when he was transferred to the Canberra Hospital.
On 24 April 2019, the Tribunal registered the appointment of the NSW Public Guardian and the mother of Toby as guardians and the mother of Toby as manager for Toby. Pursuant to section 12(2) of the Guardianship and Management of Property Act 1991 (GMP Act), the NSW Public Guardian and the mother of Toby were taken to be the guardians and the mother of Toby was taken to be the manager for Toby as if the appointment had been made by the Tribunal. The registration was expressed to continue for six months or until it was earlier revoked.
On 24 June 2019, the NSW Supreme Court ordered that the management of Toby’s estate be committed to the NSW Trustee and that the financial management order made by the NCAT on 27 March 2019 affecting Toby be revoked. The orders of the Court were made by consent of the parties.
Toby was discharged from the Canberra Hospital on 8 July 2019. Since then he has resided in Canberra with his mother and his grandparents. Toby lives in a granny flat.
On 17 October 2019, the Tribunal made orders (corrected on 31 October 2019) registering the appointment of the mother of Toby and the NSW Public Guardian as guardians for Toby from that date until 27 March 2021 unless it was earlier revoked.
On 6 December 2019, the mother of Toby applied to the Tribunal under the GMP Act to be appointed as guardian and manager for Toby.

The legislative scheme

The GMP Act sets out:
(a)the grounds on which the Tribunal may appoint a guardian and the powers that may be given to a person’s guardian (section 7);
(b)the grounds on which the Tribunal may appoint a manager and the powers that may be given to a person’s manager (section 8);
(c)who may be appointed as a guardian or a manager or both (section 9);
(d)considerations affecting the appointment of a person as a guardian or manager (section 10);
(e)that the powers given to a person’s guardian or manager are to be no more restrictive of the person’s freedom of decision and action than is necessary to achieve the purpose of the order (section 11).

Does Toby need a guardian?

The Tribunal referred to a report prepared for the purpose of this application by the general practitioner, who has been Toby’s general medical practitioner since July 2019 after his discharge from the Canberra Hospital. Toby’s general practitioner referred to three meetings with Toby at which he assessed Toby, and to particular medical reports. His report lists Toby’s medical conditions. Relevant to this application is “brain damage due to hypoxia secondary to respiratory arrest.” Toby’s general practitioner wrote:
As a result of the brain injury listed above [Toby] has difficulty with communication, behavioural issues, and physical disability. He is completely dependent on activities of daily living. …
In terms of informed decision making, [Toby] is able to hear, however, he is unable to articulate comprehensively as a result of dysarthria. I have observed understanding of simple instructions on occasions but have also observed a limited attention span, poor recall/memory and questionable ability to process complex information.
In my opinion, I do not believe [Toby] has capacity to make informed decisions with respect to the full spectrum of decision-making including financial, property, welfare and health decisions.
There was no issue that Toby needs a guardian.
On the basis of the evidence, including Toby’s general practitioner’s report, the Tribunal was satisfied that Toby has impaired decision-making ability in relation to his health and welfare; there is (or is likely to be) a need for decisions to be made in relation to those matters; and that, if a guardian is not appointed, Toby’s needs will not be met or his interests will be significantly adversely affected.[6]
[6] See Guardianship and Management of Property Act 1991 section 7(1), see also sections 5, 5A
Having discussed with the parties what powers might need to be exercised in relation to Toby,[7] the Tribunal was satisfied that his guardian should have power:
(a)to decide where, and with whom, Toby is to live;
(b)to decide what further education or training he is to receive;
(c)to give any consent required for a medical procedure or other treatment (other than a prescribed medical procedure);
(d)to give any consent required for Toby to receive services under the National Disability Insurance Scheme (NDIS);
(e)to bring or continue legal proceedings for or in the name of Toby;
(f)to make other personal decisions needed to ensure Toby’s health and welfare needs are met and to protect him from unreasonable risks to his health and welfare.
[7] Transcript of proceedings 17 March 2020 pages 19, 29-31
The Tribunal also made the following standard ancillary orders:
(g)to do things necessary to give effect to decisions about the matters set out above, including (but not limited to);
(i)      giving or receiving information; or
(ii)     giving consent to investigations and assessments; or
(iii)   participating in negotiations; or
(iv)   signing documents.

Should the Tribunal make an access order, and does it have power to make such an order?

In addition to the powers of a guardian noted at paragraphs [27] and [28] above, the mother of Toby sought power to restrict access by certain people to Toby, described as the access function.
Specifically, the mother of Toby asked the Tribunal to grant the PTG power in the same or similar terms to that contained in Order 5 of the NCAT Orders, which stated that the NSW Public Guardian has the function “To decide what access Toby has to others and the conditions of access.”
Three issues arose in relation to that application:
(a)whether a power in those terms is appropriate;
(b)whether the Tribunal can grant a power in those terms; and
(c)how such a power would be administered.
First, the explanation for the access order made by NCAT and the proposed access order in the ACT was given in submissions made on behalf of the mother of Toby.
The purpose of the access function was to decide about visits to Toby by his wife and other family members. The NCAT gave the access function to the NSW Public Guardian because of a breakdown in the relationship between the wife of Toby and the mother of Toby since Toby’s injury.[8]
[8] Transcript of proceedings 17 March 2020 page 13
The mother of Toby sought a separate grant of a power to a third party to make decisions about access to the wife of Toby and her direct relatives to avoid any dispute in the future.[9] In support of that application it was submitted that:
[The mother of Toby] has shown she’s absolutely willing to comply with those sorts of orders and put up no obstruction to [the wife of Toby] visiting and it would certainly avoid the need for potential future conflict because of the significant breakdown of the relationship that’s occurred.
Unfortunately, I mean [the wife of Toby] has a right to use her lawyers, but she does use her lawyers for everything. She refuses to talk to the Public Guardian; she only talks through her lawyers. In my submission, it’s unreasonable that [the mother of Toby] should have to deal with that situation of dealing with [the wife of Toby’s] lawyers and having to manage access issues when she is also trying to look after [Toby] and to deal with his best interests.[10]
[9] Transcript of proceedings 17 March 2020 page 19
[10] Transcript of proceedings 17 March 2020 page 19
For present purposes, it is not necessary to describe in detail the nature of the relationship between the mother of Toby and the wife of Toby. It is sufficient to note that in a written report on behalf of the NSW Public Guardian, stated:
[The wife of Toby] and [the mother of Toby] acknowledged at the initial NSW Tribunal hearing that there had been a breakdown in their relationship and significant conflict between them over issues to do with [Toby’s] care and treatment since his brain injury.[11] Whilst they both have concerns for [Toby’s] welfare, their approach on how this should be achieved differs significantly. Since 2017 [the wife of Toby] and [the mother of Toby] have had no direct communication.
[11] See the reasons for decision of the NCAT in relation to Toby dated 17 October 2018 at [30], see also [32], [34], [35], [44] and [51]. The reasons for decision for the NCAT Order of 27 March 2018 noted that there were no representations to make the NCAT doubt that their estrangement continued. It found that the mother of Toby and the wife of Toby were unable to work collaboratively or constructively together: at [151].
On 27 March 2019, the NSW Public Guardian recommended that if the NCAT appointed a family member as Toby’s guardian then it may be appropriate for the NSW Public Guardian to retain the access function, given the difficulties that the mother of Toby and the wife of Toby had experienced in reaching an agreement on Toby’s care.
The report to the Tribunal noted that, the appointment of the NSW Public Guardian having been made:
(a)the NSW Public Guardian had not had direct contact with the wife of Toby throughout the term of the NCAT Order, as she had asked that the NSW Public Guardian only correspond with her through her lawyer;
(b)the NSW Public Guardian had been required to make several access decisions under the NCAT Orders which was fully recognised in the ACT (details of which were set out in the report);
(c)the NSW Public Guardian had found the mother of Toby to be open and willing to allow the wife of Toby and other family members to visit with Toby while he was in hospital and since he moved to Canberra to live with his mother;
(d)the mother of Toby had been flexible with the dates and times that Toby was available for visits, and she had arranged for support workers to facilitate these visits;
(e)the mother of Toby had also provided professional support for Toby after these visits so that he could process the feelings and emotions that might arise because of contact with his wife and other family members.

Counsel for the mother of Toby stated that there was no intention to change the access arrangements that were in place. Rather, “we would like to parallel them in the ACT if that was possible,” so that the PTG would be able to decide about visits by the wife of Toby and there would be no obstruction by the mother of Toby (as there had not been over the 12 months since the NCAT Orders were made).[12]
[12] Transcript of proceedings 17 March 2020 page 9
The Tribunal questioned the appropriateness of adopting the broad wording in Order 5 of the NCAT Orders, give the potential for such a power, if administered literally, to be used to prevent Toby having access to anybody else, including his carers, doctors, lawyers and others. The Tribunal understood that that was never the intention of the access function and, in relation to Toby, that the function had not been exercised in that manner.[13]
[13] Transcript of proceedings 17 March 2020 page 27
In discussion with the parties, it became clear that the only persons who were, in effect, the subject of the NCAT access function order were the wife of Toby and Toby’s father. The mother of Toby was content to have the Tribunal make an access order limited to those individuals.[14]
[14] Transcript of proceedings 17 March 2020 pages 28-29
In the circumstances of the case, the Tribunal was satisfied that it would be appropriate to provide an access power of limited scope to make decisions about access to Toby by his wife and by his father including decisions about when, where and in what circumstances such access is to occur.
The second question was whether the Tribunal can grant such a power.
The power to confer an access function on a guardian in New South Wales is drawn from section 16(2) of the Guardianship Act 1987 (NSW) which states that a guardianship order shall specify the extent to which the guardian shall “have custody” of the person and which of the functions of a guardian the guardian shall have. There is no similar provision in the GMP Act.
As noted earlier, section 7(1) of the GMP Act sets out the grounds on which the Tribunal may appoint a guardian. Section 7(2) provides that the Tribunal may, by order, appoint a guardian with “the powers that the ACAT is satisfied are necessary or desirable to make decisions for the person” in accordance with the decision-making and support set out in section 4 of that Act. Section 7(3) opens with the words “The powers that may be given to a person’s guardian include the following powers” (emphasis added). Those opening words are followed by paragraphs listing seven specific types of powers. The listed powers do not include an access power.
Counsel for the mother of Toby referred to the reasons for decision of a differently constituted Tribunal in In the Matter of Renée,[15] which stated:
Reading sections 7(2) and (3) together, it is clear that the powers described in section 7(3) are only illustrative of the kinds of powers that a guardian may be empowered to exercise.[16]
[15] In the Matter of Renee [2019] ACAT 116
[16] In the Matter of Renee [2019] ACAT 116 at [10]
That conclusion follows from the use of ‘includes’ in the opening words of section 7(3).[17] It is also consistent with section 139 of the Legislation Act 2001 which states:
Interpretation best achieving Act’s purpose
(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
(2) This section applies whether or not the Act’s purpose is expressly stated in the Act.
[17] See Legislation Act 2001 section 130
Although the Tribunal may, by order, appoint a guardian with powers in addition to or varying from those listed in section 7(3), the Tribunal’s discretionary power is not unlimited. Specifically, section 7B of the GMP Act provides that the powers that may be given to a person’s guardian do not include a power to discipline the person or a power to do any of the things listed in paragraphs (a) to (e) of that section.
The conferral on a guardian of a power not listed in section 7(3) is not unique to this case. Indeed, the orders referred to in paragraphs [27](d), (f) and [28] above have no textual counterpart in section 7(3) but are commonly made by the Tribunal.
Arguably, the access power is an example or outworking of the more general (and commonly made) order giving the guardian power “to make other personal decisions needed to ensure the protected person’s health and welfare needs are met and to protect him from unreasonable risks to his health and welfare.”[18]
[18] See Transcript of proceedings 17 March 2020 page 26
The appointment of the PTG to be guardian together with another person is unusual but not prohibited. Indeed, section 14(1) of the Public Trustee and GuardianAct 1985 provides that the PTG may be appointed and act jointly with another person in any of the capacities referred to in section 13 of that Act, including being appointed by the Tribunal as a guardian for a person.[19]
[19] Public Trustee and Guardian Act 1985 section 13(1)(h)
In the present case, the application was not for the PTG to act jointly with the mother of Toby in exercising the same power. Rather, it was for the PTG to be appointed as an additional guardian for the purpose of exercising a specific power that would be separate from the powers conferred on the mother of Toby.
Thirdly, there were some questions about the practical operation of such an access power.
A senior guardian from the ACT Public Trustee and Guardian alluded to the novelty of such an order in the experience of the PTG. She stated that where conflicts in relation to access have occurred in other guardianship matters, the PTG has referred its clients to bodies such as Relationships Australia for a plan to be put in place that suits the family parties.[20]
[20] Transcript of proceedings 17 March 2020 page 24
In this case, the Tribunal and the PTG can draw on the experience of the NSW Public Guardian in the 12 months preceding the hearing. According to a senior guardian from the NSW Public Guardian, the NSW Public Guardian received requests from the wife of Toby’s lawyers as to the dates she would like to visit with Toby. The NSW Public Guardian then spoke to the mother of Toby and requested support workers for the visits. When those arrangements were made, the NSW Public Guardian gave a formal letter to the wife of Toby’s lawyers advising her of the decision around access on the requested date. The Tribunal understands the effect of the senior guardian’s evidence to be that the NSW Public Guardian has worked out the practical arrangements with the other guardian and then communicated those arrangements to the wife of Toby’s lawyers, who acted as an intermediary. According to a senior guardian from the NSW Public Guardian, it has “actually been about the practicalities of arranging those visits.” The NSW Public Guardian has relied on the support workers’ manager to have conversations with the wife of Toby when she arrived for access visits.[21]

Does Toby need a manager in the ACT?

[21] Transcript of proceedings 17 March 2020 pages 24-25

As noted earlier, there was evidence before the Tribunal from Toby’s general practitioner that Toby does not have capacity to make informed decisions with respect to the full spectrum of decision-making including financial and property decisions. Toby’s lack of capacity and need for a manager was accepted by the NCAT and the NSW Supreme Court. So, for example, on 24 June 2019 the NSW Supreme Court declared, pursuant to section 41(1) of the NSW Trustee and Guardian Act 2009 that Toby is incapable of managing his affairs.
The fact that Toby needs a financial manager is the basis of:
(a)NCAT Orders dated 27 March 2019 appointing the mother of Toby as the financial manager of the estate of Toby, which was subject to management under the NSW Trustee and Guardian Act 2009;[22]
(b)orders dated 24 April 2019 and 17 October 2019 by which the Tribunal registered the appointment of the mother of Toby as manager for Toby;
(c)orders dated 24 June 2019 made by the Supreme Court of New South Wales, with agreement of the parties, revoking the financial management order made by NCAT on 27 March 2019 and ordering that the management of Toby’s estate be committed to the NSW Public Trustee.
[22] Those orders also revoked the appointment of wife of Toby as the financial manager of the estate of Toby
The issue in this case is not whether Toby needs a manager but whether, given the order made by the NSW Supreme Court, he requires a manager in the ACT.
In her application to the Tribunal to be appointed as Toby’s manager, the mother of Toby wrote “Please note: any order made by ACAT over Toby’s assets is not intended to interfere with the existing NSW Supreme Court orders.”
The statement of Toby’s property, in the form of a statutory declaration made by the mother of Toby on 3 December 2019, clearly shows that all of his financial assets are held in the New South Wales Public Trustee OPC Trust Account. It records his liabilities as a credit card, outstanding legal costs and outstanding fees to the NSW Public Trustee. The only non-monetary assets listed are a motor vehicle and unspecified personal effects.
At the hearing on 17 March 2020, the mother of Toby made it clear that her application was not an attempt to interfere with the orders of the Supreme Court. Her counsel submitted that the application to appoint the mother of Toby as manager was “simply to cover a potential hiatus in regard to any assets he may accumulate in the ACT.”[23]
[23] Transcript of proceedings 17 March 2020 page 19
It is intended to operate if Toby accumulates assets in the ACT that are not under the jurisdiction of the NSW Public Trustee. In those circumstances, the mother of Toby would have authority to deal with them. Counsel noted that Toby is still married, and it was undesirable that there be further conflict about the management of those assets.[24]
[24] Transcript of proceedings 17 March 2020 pages 19-20
There was evidence before the Tribunal that, at the time of the hearing, Toby’s biggest asset was a motor vehicle which was suitable for his needs. He also owned some furniture. These assets were purchased with money from the account which the NSW Public Trustee is managing. In the future, Toby might need to purchase equipment which falls outside his NDIS plan.[25]
[25] Transcript of proceedings 17 March 2020 pages 33-34
Again, counsel stressed that all Toby’s financial assets are going into his trust fund. He does not have a bank account in the ACT. The application was simply for power to manage physical assets located in the ACT, not to manage any financial assets.[26]
[26] Transcript of proceedings 17 March 2020 pages 34-35
Although counsel for the wife of Toby initially suggested that the proposed order seemed “slightly superfluous”, he accepted that it was for practical purposes and made sense.[27]
[27] Transcript of proceedings 17 March 2020 pages 35-36
The Tribunal was satisfied that it was appropriate to appoint a manager to manage all of the property, other than finances, of Toby located in the ACT with all the powers that Toby would have been entitled to exercise if he were legally competent to exercise powers in relation to that property.

Is the mother of Toby a suitable person to be Toby’s guardian and manager?

In support of her application to be made Toby’s guardian and manager, the mother of Toby provided:
(a)her statutory declaration dated 3 December 2019;
(b)a written statement dated 18 November 2019 from the Director of Bloomfield Support Solutions;
(c)a written statement from a speech pathologist with Eat Speak Learn Speech Pathology Services; and
(d)a written statement dated 14 November 2019 from a behaviour therapist.
The mother of Toby’s statutory declaration is evidence that she complies with the requirements in section 10(2) of the GMP Act, namely, that she is an adult and that she has informed the Tribunal on oath that she has not been convicted or found guilty of an offence involving violence, fraud or dishonesty; has not been refused appointment as a guardian or manager (or has not been removed from office as a guardian or manager) either in the ACT or elsewhere; is not bankrupt, and is not personally insolvent.
The Director of Bloomfield Support Solutions was employed as the NDIS Coordinator of Supports. She has known the mother of Toby and Toby since May 2019 when he was preparing to be discharged from the Canberra Hospital. Among the statements in support of the mother of Toby’s application to continue as Toby’s guardian, the Director of Bloomfield Support Solutions wrote that the mother of Toby:
has worked tireless in ensuring the decisions she has made for [Toby] have always respected his wishes and are within his best interests. She has been instrumental in creating a well-trained professional team of support workers all of who are approved by [Toby]. The care and support this team provides to [Toby] is faultless.
[The mother of Toby] has also worked extremely hard in ensuring that [Toby’s] physical, emotional and medical needs are met, and services are delivered by Allied health professionals with the expertise in [Toby’s] complex needs. (errors in original)
The Director of Bloomfield Support Solutions wrote that “without [the mother of Toby’s] commitment and understanding of her legal responsibilities as Legal Guardian, [Toby] would not have transitioned from the Canberra Hospital to his own home successfully with all the necessary supports and services involved.” She expressed the view that the re-appointment of the mother of Toby as guardian would be “instrumental in ensuring that his quality of life continues to improve and receive the necessary supports and services without prejudice.”
In her statement, a speech pathologist with Eat Speak Learn Speech Pathology Services wrote that she has known Toby since 2017 (when she was at a different practice and Toby was under the guardianship of his wife) and has been engaged by the mother of Toby since August 2019. The speech pathologist conducts fortnightly therapy visits to the home where Toby is “most comfortable.” She noted that Toby trusts his mother and his grandparents and “regularly looks to his mother for reassurance and calming.” The speech pathologist wrote in support of the mother of Toby’s application for guardianship and management orders and concluded that “under the guardianship of his mother, [Toby] has been able to safely resuming [sic] eating and drinking for pleasure. [Toby] is well supported in his current living arrangements to meet his eating and drinking goals.”
The behaviour therapist wrote that she has supported Toby and his family in her role as a behaviour therapist since mid-July 2019. That work has included initial observations sessions, the development and presentation of a PBS (Behaviour Assessment and Intervention Assessment) Plan, and individual therapy sessions to assist with the implementation of the PBS Plan. The behaviour therapist expressed the opinion that the mother of Toby has Toby’s health and well-being as “her number 1 priority” and has been “paramount in adapting, implementing & interpret [sic] a PBS perspective in providing support to [Toby], resulting in a dramatic reduction in behaviours of concern displayed by [Toby].” Toby spends most of each day at his mother’s place which provides “a safe space for [Toby] both physically & emotionally.” Having set out detailed observations about Toby’s circumstances and progress, the behaviour therapist expressed the opinion that “it would benefit” Toby for his mother to have guardianship and management orders in relation to him.
Although the wife of Toby raised specific issues about some aspects of how the guardianship powers would be exercised in relation to her,[28] she did not oppose the appointment of the mother of Toby as Toby’s guardian.[29]
[28] These matters are considered later in these reasons and the order and notation to the order
[29] Transcript of proceedings 17 March 2020 page 22
There was no issue about the mother of Toby’s suitability to be appointed. Her suitability was demonstrated by the documents referred to above, and by the orders made by NCAT on 27 March 2019 and the reasons for that decision.
The Tribunal was satisfied that the mother of Toby satisfies the statutory criteria and is a suitable person to be appointed as Toby’s guardian and manager.[30]
[30] Transcript of proceedings 17 March 2020 page 29
Specifically, taking into account the statutory criteria for appointment and the evidence as a whole (only some of which is recorded in these reasons for decision), the Tribunal was satisfied that:
(a)the views and wishes of Toby so far as they could be ascertained or inferred;[31]
(b)the desirability of preserving existing relationships with family and any other carers;[32]
(c)the compatibility of the mother of Toby with her son, Toby;
(d)the fact that the mother of Toby and her son live in the ACT;
(e)the fact that the mother of Toby is and will be available and accessible to Toby;
(f)the fact that the mother of Toby has demonstrated her competence to exercise the functions of guardian and manager; and
(g)the absence of any evidence or suggestion that the mother of Toby’s interests and duties are likely to conflict with Toby’s interests to his detriment,[33]
support the appointment of the mother of Toby as Toby’s guardian and manager.
[31] In her application for appointment the mother of Toby stated that she had informed Toby that she was making the appointment and that he agreed with the application being made. The statements by Director of Bloomfield Support Solutions, a speech pathologist with Eat Speak Learn Speech Pathology Services and a behaviour therapist suggests that Toby is content with current arrangements
[32] See the discussion of the access order at paragraphs 30-55 inclusive
[33] Guardianship and Management of Property Act 1991 section 10(4)
The Tribunal was also satisfied that the mother of Toby will follow the decision-making principles set out in section 4 of the GMP Act[34] and that she is “otherwise suitable for appointment.”[35]

Duration of orders

[34] See submission in Transcript of proceedings 17 March 2020 page 18
[35] Guardianship and Management of Property Act 1991 section 10(3)

Counsel for the mother of Toby submitted that she be appointed for as long as possible. In the context of the previous litigation, he submitted that the mother of Toby “needs some relief to just move on and not be concerned about further hearings.” He also submitted that it was in the interests of Toby to make the duration of the appointment “longer rather than shorter.”[36]
[36] Transcript of proceedings 17 March 2020 page 32
As counsel recognised, the GMP Act provides that the Tribunal must review an order appointing a guardian or manager at least once every three years.[37] Accordingly, he requested an order for three years.[38]
[37] Guardianship and Management of Property Act 1991 section 19(2)
[38] Transcript of proceedings 17 March 2020 page 32
In the ordinary course, the Tribunal directs that an appointment be reviewed on the Tribunal’s initiative before the expiration of three years from the date of the original order. In this case, there was no reason to depart from that practice. The fixing of the review date was reinforced by the submissions made by the mother of Toby’s counsel.
We also note that, as indicated to counsel for the wife of Toby at the hearing, the wife of Toby could seek a review of the appointment of a guardian or manager.[39] That application could be made at any time.[40]

Provision of information to the wife of Toby

[39] Transcript of proceedings 17 March 2020 page 36
[40] Guardianship and Management of Property Act 1991 section 19(1)

In addition to wanting to ensure that she could continue to visit Toby, the wife of Toby also requested that the PTG be ordered to provide her with updates on Toby’s health and welfare, particularly information when his condition worsens or deteriorates.[41]
[41] Transcript of proceedings 17 March 2020 pages 9-10, 12, 21, 22

Counsel for the mother of Toby contended that allegations that the wife of Toby had not received that information were first raised at the hearing and were made in the absence of any previous requests from the wife of Toby or her lawyers for information of that kind from the guardians.[42]
[42] Transcript of proceedings 17 March 2020 pages 10, 39, 40
Later in the hearing, when the focus shifted to a possible order that the mother of Toby provide information of that kind to the wife of Toby, counsel submitted that such an order was not necessary given:
(a)that section 4(3) of the GMP Act provides that a decision-maker must consult with each carer of the protected person,[43] and the wife of Toby might fall into that category when she visits Toby and provides assistance to him;[44]
(b)the absence of previous requests for information and any evidence that the mother of Toby would or would not inform her;
(c)the evidence that the mother of Toby was open to the wife of Toby’s visits and had never obstructed them, which showed that she would not withhold information from the wife of Toby based on reports that she had; and
(d)that common courtesy would suggest that the mother of Toby would inform the wife of Toby if Toby’s condition deteriorates.[45]
[43] See the definition of ‘carer’ in the Guardianship and Management of Property Act 1991 section 6
[44] Transcript of proceedings 17 March 2020 page 37
[45] Transcript of proceedings 17 March 2020 page 39-41
Counsel for the wife of Toby drew a distinction between obliging the mother of Toby to provide information to the wife of Toby and an obligation to consult with the wife of Toby about matters involving Toby’s health and welfare.[46]
[46] Transcript of proceedings 17 March 2020 page 38
Counsel for the mother of Toby noted the difficult relationship between the mother of Toby and the wife of Toby and suggested it might be preferable for Toby’s general medical practitioner to send a report to the wife of Toby.[47]
[47] Transcript of proceedings 17 March 2020 page 42
After some discussion with the parties and their legal representatives, the Tribunal decided simply to note at the end of the order that the mother of Toby “has agreed to provide or arrange for the provision of information about significant changes to the protected person’s condition or circumstances to the wife of Toby”.

Conclusion and orders

For the reasons given in the course of the hearing on 17 March 2020, as expanded upon in these written reasons for decision, the Tribunal made the orders dated 17 March 2020.
Consistently with the approach taken by the NCAT, which provided detailed written reasons for decisions in relation to Toby subject to restrictions on their publication, the Tribunal:
(a)by order under section 39 of the ACAT Act, directs that the oral and written evidence given in these proceedings is not to be published in public;
(b)directs that these reasons for decision:
(i)      are to be made available only to Toby, the wife of Toby, the mother of Toby, the NSW Public Trustee, the NSW Public Guardian and the ACT Public Trustee and Guardian, and their legal representatives;
(ii)     can be made available to the NCAT if necessary or appropriate; and
(iii)   are not to be published or otherwise disclosed publicly; and
(c)notes that the Tribunal might publish an anonymised version of these reasons for decision, removing from those published reasons the names of all parties and those who provided evidence in relation to the hearing of this application.
………………………..
President G Neate AM
For and on behalf of the Tribunal