KAX

[2016] NSWCATGD 44

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	KAX [2016] NSWCATGD 44
Hearing dates:	25 August 2016
Date of orders:	25 August 2016
Decision date:	25 August 2016
Jurisdiction:	Guardianship Division
Before:	J Simpson, Senior Member (Legal) Dr M Martin, Senior Member (Professional) L Porter, General Member (Community)
Decision:	The application for a guardianship order to be made for Mr KAX is dismissed.
Catchwords:	GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – family member willing to advocate in relation to NDIS issues – application dismissed
Category:	Principal judgment
Parties:	Mr KAX (subject person) Ms LMU (applicant) The NSW Trustee and Guardian The NSW Public Guardian
File Number(s):	28589
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 dismissed the application for a guardianship order.

Background

2. Mr KAX is a 64-year-old man with an intellectual disability who lives at an Ageing, Disability and Home Care (ADHC) facility in regional NSW. With Mr KAX moving under the National Disability Insurance Scheme (NDIS), Ms LMU, residential unit nurse manager, applied for a guardianship order.

What did the Tribunal have to decide?

3. The Tribunal had to decide:

1. Does Mr KAX 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?

Decision

4. From the reports of Ms Z, registered nurse, and a psychologist, the Tribunal accepted that Mr KAX has a severe intellectual disability and is unable to make important life decisions. He does not use verbal language.

5. Ms LMU had made her application due to the need for someone to make decisions for Mr KAX in relation to becoming a participant in the NDIS and in NDIS planning processes. Ms LMU wrote that Mr KAX’s cousin, Ms SDQ, had previously acted as “person responsible” for him but there had been difficulties contacting Ms SDQ.

6. However, in the hearing, Ms SDQ showed a strong interest in Mr KAX’s well-being. She had already had contact with an NDIS representative and was keen to advocate for Mr KAX with the NDIS and in relation to other issues. She said that she has visited Mr KAX a few times each year and would like to visit more. She had been involved the previous week in decisions when Mr KAX went to hospital.

7. Ms LMU was not present at the hearing but was represented by Ms Z, registered nurse. In light of what Ms SDQ said, Ms Z accepted there may be no need for a guardianship order. This was also the view of Ms SDQ and Mr Kearton from the Public Guardian.

8. In the absence of a guardianship order, a family member who has regular contact with Mr KAX and takes an active interest in his welfare is “person responsible” for him. The Tribunal accepted Ms SDQ’s evidence that she would be maintaining this level of involvement and also saw her as an active family advocate for Mr KAX in relation to NDIS issues and the looming transfer of the ADHC facility to a non-government organisation.

9. In these circumstances, the Tribunal saw no need for a guardianship order and dismissed the application.

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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: 16 March 2017