KKC

[2016] NSWCATGD 46

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	KKC [2016] NSWCATGD 46
Hearing dates:	5 October 2016
Date of orders:	05 October 2016
Decision date:	05 October 2016
Jurisdiction:	Guardianship Division
Before:	G Moin, Senior Member (Legal) R Rayner, Senior Member (Professional) B Epstein-Frisch, General Member (Community)
Decision:	Financial Management 1. The application for a financial management order in relation to the estate of Mr KKC is dismissed.  Guardianship 2. The application for a guardianship order to be made for Mr KKC is dismissed.
Catchwords:	FINANCIAL MANAGEMENT – application for financial management order – no need for an order – application dismissed   GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – family members willing to advocate in relation to NDIS issues – principle of least restriction – application dismissed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2)
Cases Cited:	IF v IG [2004] NSWADTAP 3
Category:	Principal judgment
Parties:	Mr KKC (subject person) Mr EWC (applicant) The NSW Public Guardian The NSW Trustee and Guardian
File Number(s):	15616
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 guardianship in relation to Mr KKC made by Mr EWC.

AND

2. The Tribunal dismissed the application for the appointment of a financial manager.

BACKGROUND

3. Mr KKC is a 51-year-old man who resides in a group home in regional NSW provided by Ageing, Disability and Home Care (ADHC). Reports indicate that Mr KKC has an intellectual disability, severe epilepsy, and is non-verbal.

4. Mr KKC is supported by and is in regular contact with his father, Mr EWC, and his brother, Mr FBC, who also resides in regional NSW. Mr KKC’s mother has passed away.

5. On 4 August 2016, the Tribunal received an application for a guardianship and financial management order from Mr EWC.

The hearing

6. This hearing was to deal with an application made by a loving father seeking financial management and guardianship orders in respect of his disabled son.

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]

GUARDIANSHIP APPLICATION

What did the Tribunal have to decide?

8. The questions which had to be decided by the Tribunal were:

• Is Mr KKC someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

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

• Who should be the guardian?

• How long should the order last?

Is Mr KKC someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

9. Section 14 of the Guardianship Act 1987 (NSW) (the Act) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/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” (s 3(1) of the Act). 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 (s 3(2) of Act).

10. Filed with the Tribunal was a Health Professional Report Form made by Dr Z, Mr KKC’s GP, dated 30 September 2016. In the report Dr Z states that Mr KKC has a disability being a severe but static intellectual disability caused by viral encephalitis when Mr KKC was five years old. In addition, Dr Z notes that Mr KKC suffers from epilepsy, has a profound reversible intellectual incapacity and is non-verbal.

11. Also filed with the Tribunal were various documents prepared or organised by ADHC such as a Health Care Plan Summary Form, a Comprehensive Health Assessment Program, and Incident Prevention and Response Plans. These documents in various ways supported the conclusions made by Dr Z in the report referred to in the previous paragraph.

12. In light of the documents referred to above and its own observations, the Tribunal is satisfied that Mr KKC has a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order and what order should be made?

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

1. the views (if any) of:

1. the person, and

2. the person's spouse, and

3. the person's carer and

2. the importance of preserving the person's existing family relationships, and

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

The views of Mr KKC

15. Due to Mr KKC’s profound intellectual disability, he was not able to present his views to the Tribunal.

The views of Mr EWC

16. Mr EWC explained to the Tribunal that he filed the application with the Tribunal on the basis that he believed his son needed someone to look after his welfare. Mr EWC said that he is 83-years-old and felt that he “could fall off the perch and it would leave [Mr KKC] in a negative situation”.

17. According to Mr EWC, the other important factor in filing the application is the NDIS. Mr EWC was concerned that somebody needed to be “fighting for [Mr KKC]’s needs”. Mr EWC stated that his son needed a strong advocate particularly given that he was living in an “excellent environment”. Mr EWC wanted to ensure that his son continued to live in an environment similar to that which he currently enjoyed following the implementation of the NDIS.

18. The “excellent environment” which Mr KKC lives in is a group home operated by ADHC in regional NSW. The Tribunal noted the participation in the hearing by Ms Y and Mr X who are ADHC employees and who provided a positive and supportive environment for Mr KKC. Mr EWC agreed that his son received appropriate healthcare and services at the group home. Mr EWC was concerned that with the implementation of the NDIS, his son will shortly transition from the support being funded by ADHC to funding emanating from the NDIS.

19. The Tribunal asked Mr EWC if the NDIS accepted him as his son’s representative, to which Mr EWC replied that it did.

20. Significantly, Mr EWC indicated to the Tribunal that he felt “certain that [Mr FBC] can take over from me” in relation to representing and advocating for his son, should something happen to Mr KKC. Mr FBC informed the Tribunal that he was prepared to take on this role in circumstances where his father was unable to do so.

The Tribunal’s determination

21. The Tribunal appreciated the concerns that Mr EWC had for his son particularly given the excellent care and support that his son was receiving at the ADHC-operated group home. Mr EWC had genuine concerns given the unknowns surrounding the transition from ADHC to NDIS and how this change would impact on the care and support which his son receives.

22. The Tribunal noted that Mr KKC is 51-years-old and during his adult years he has not had a guardian. Mr KKC’s family have ensured that his care and support has at all times been appropriate. Mr EWC is recognised by NDIS as his son’s representative under the NDIS scheme. The Tribunal had no doubt that in this role, Mr EWC will advocate strongly for and on behalf of his son. Should something happen to Mr EWC such that he is no longer able to support and advocate for his son, then the Tribunal felt equally certain that Mr FBC would be able to step into his father’s shoes and perform at the same level as his father.

23. It is important to appreciate that in considering whether the Tribunal should make a guardianship order, it is required to look at the least restrictive option for Mr KKC and enquire as to whether informal arrangements can and/or do exist which would obviate the need for a formal order being made.

24. In this regard, the Tribunal is satisfied that Mr EWC (and in his absence, Mr FBC) is Mr KKC’s person responsible and therefore a guardian is not needed to make decisions about Mr KKC’s medical or dental treatment.

25. The Tribunal was genuinely impressed with the love and care shown for Mr KKC by his father and brother. The Tribunal acknowledges that Mr EWC and Mr FBC are the decision makers for Mr KKC. The Tribunal is also satisfied that the decisions made by Mr EWC and Mr FBC for and on behalf of Mr KKC have been and will continue to be made in his best interests.

26. After having regard to the factors referred to in s 14(2) of the Act and the principles set out in s 4 of the Act and applying those factors and principles to the evidence presented at the hearing, the Tribunal decided that a guardianship order should not be made.

27. In light of the findings above, the Tribunal did not have to consider the other questions referred to earlier in these Reasons for Decision.

FINANCIAL MANAGEMENT APPLICATION

What did the Tribunal have to decide?

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

• Is Mr KKC incapable of managing his affairs?

• Is there a need for another person to manage Mr KKC’s affairs and is it in his best interests for a financial management order to be made?

• If so, who should be appointed financial manager?

Is Mr KKC incapable of managing his affairs?

29. The medical evidence and the evidence of those present at the hearing all pointed to the conclusion, which was accepted by the Tribunal, that Mr KKC is incapable of managing his affairs.

Is there a need for a financial management order?

30. Mr EWC informed the Tribunal that his son had approximately $12,000 of shares and about $8,000 in cash held at a financial institution. Both the shares and the cash are held in an account in Mr EWC’s name in trust for his son, Mr KKC.

31. Ms Y stated that ADHC is Mr KKC’s Centrelink nominee and Mr KKC’s pension is deposited into a group home account at a bank. Mr X said that Mr KKC has a credit balance in the account of approximately $3,600. Mr KKC’s expenses include bed linen, incontinence aids, medication expenses, clothing, and expenses associated with his wheelchair. An annual budget is prepared for Mr KKC which is approved by his father. When bills need to be paid for Mr KKC, two of five staff members at the group home are required to sign cheques.

32. The Tribunal expressed its concerns to Ms Y and Mr X regarding the way in which the account was operated and the risks which it exposed to Mr KKC. Ms Y agreed and noted that the “process is barely working” and will be changed. Mr EWC will soon take control of the account and will be nominated by ADHC as Mr KKC’s Centrelink nominee.

33. In light of the evidence referred to above and having regard to the principles set out in s 4 of the Act, the Tribunal was not satisfied that there is a need to appoint someone to manage Mr KKC’s affairs. The application for financial management should be dismissed.

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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: 06 June 2018