KZS

[2020] NSWCATGD 89

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KZS [2020] NSWCATGD 89

Hearing dates:

25 November 2020

Date of orders:

25 November 2020

Decision date:

25 November 2020

Jurisdiction:

Guardianship Division

Before:

L Organ, Senior Member (Legal)

Decision:

Guardianship

The guardianship order for KZS made on 23 October 2019 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of 12 months from 25 November 2020.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where KZS may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take KZS to a place approved by the guardian.

ii) keep them at that place.

iii) return them to that place should they leave it.

c) Services

To make decisions about services to be provided to KZS.

CONDITION:

5. The condition of this order is:

a) Standard Condition

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

Financial Management

The Financial Management order for KZS made on 9 April 2020 has been reviewed. The order now is as follows:

1. The estate of KZS is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. The management of the estate of KZS is committed to the NSW Trustee and Guardian.

Catchwords:

GUARDIANSHIP – review of a guardianship order – end-of-term review of guardianship order – subject person with Korsakoff's syndrome and Schizophrenia – whether a further guardianship order should be made – continued need for a guardianship order – need for decisions in relation to accommodation and services – healthcare functions no longer required – medical and dental consent no longer required - Public Guardian appointed – order renewed and varied.

FINANCIAL MANAGEMENT – review of financial management order – end of term review of financial management order – where the subject person remains incapable of managing their affairs – NSW Trustee and Guardian appointed – order renewed.

Legislation Cited:

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

Mental Health Act 2007 (NSW)

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

004: Review of Guardianship Order

KZS (the person)
Public Guardian (appointed guardian)

006: Review of Reviewable Financial Management Order

KZS (the person)
NSW Trustee and Guardian (appointed financial manager)

Representation:

Nil

File Number(s):

NCAT 2018/00264321

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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

STATUTORY REVIEW OF GUARDIANSHIP ORDER

Background

1. KZS is a 59-year-old man who is currently residing in supported accommodation in regional NSW.

2. The Tribunal has previously accepted evidence that KZS has a diagnosis of alcohol related brain impairment.

3. On 23 October 2019 the Tribunal appointed the Public Guardian as KZS’ guardian for a period of 12 months to make decisions for KZS about his accommodation, services, health care, medical and dental treatment.

4. Or 9 April 2020 the Tribunal made a financial management order and committed the management of KZS’ estate to the NSW Trustee and Guardian (NSWTG). The Tribunal ordered that the financial management order be reviewed within six months.

5. This hearing was to consider the end-of-term review of the guardianship order made on 23 October 2019 and the review of the reviewable financial management order made on 9 April 2020.

The hearing

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

What did the Tribunal have to decide?

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

• Is KZS someone for whom the Tribunal could make a further order because he continues to have a disability which prevents him from being able to make important life decisions?

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

• Who should be the guardian?

• How long should the order last?

Is KZS someone for whom the Tribunal could make a further order because he continues to have a disability which prevents him from being able to make important life decisions?

8. Section 14 of the Guardianship Act 1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is “a person in need of a guardian”. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person”: Guardianship Act, 3(1). A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: Guardianship Act, s 3(2).

9. KZS said he would “prefer not to” have a guardianship order. He said he can make his own decisions perhaps with a bit of help sometimes.

10. When the previous orders were made the Tribunal found KZS had a disability being Korsakoff's syndrome and schizophrenia and as a result was unable to make important life decisions.

11. A report of Dr Z, Staff Specialist Psychiatrist at a regional NSW Older People's Mental Health Service was in evidence. This report, which was dated 26 August 2020, states that KZS has diagnoses of probable Korsakoff syndrome and late onset schizophrenia with a significant alcohol dependence disorder which is currently in remission. This is on a background of alcohol withdrawal seizures, alcoholic hallucinosis, methamphetamine and cannabis use. KZS is also noted to have a number of medical conditions including chronic hyponatremia, malnutrition and seizures.

12. At the date of Dr Z’s report, KZS was noted to be subject to a community treatment order under the Mental Health Act with his mental state noted to be stable on a combination of Paliperidone depot and oral Olanzapine. Dr Z says that in her opinion following assessment of KZS’ capacity she does not believe he is able to make decisions around his accommodation, services, health care or his financial affairs. His cognition was noted to remain very poor and no significant or sustained improvement in his cognition, despite abstinence from alcohol, was noted by Dr Z. Dr Z notes KZS reported to her that he gets lost and sometimes he is unable to find his way back to his boarding house. He also reported to Dr Z that he continues to have trouble managing his money and has had to request frequent additional funds from his financial manager.

13. There was no new evidence before me that would provide a basis to draw a different conclusion to the previous Tribunal's findings on the issue of KZS’ capacity to make informed life decisions. I was satisfied that KZS continues to have a disability which prevents him making important life decisions. He is, therefore, a person for whom I could make a further guardianship order.

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

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

1. the views (if any) of:

1. the person;

2. the person’s spouse;

3. the person’s carer; and

2. the importance of preserving the person’s existing family relationships;

3. the importance of preserving the person’s particular cultural and linguistic environments; and

4. the practicability of services being provided to the person without the need for the making of such an order.

15. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. When undertaking this task the Tribunal must observe the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

16. The Public Guardian provided a written report and the Duty Guardian from the Public Guardian also gave oral evidence. In brief, the Public Guardian recommends the guardianship order continue with the guardian having authority to make decisions on behalf of KZS in relation to his services. The Public Guardian acknowledged the view of KZS’ community mental health team that additional decision-making functions were required for KZS, however, the Public Guardian said it is not aware of any foreseeable decisions required for KZS apart from the services function. Since the order was made in 2019, the Duty Guardian noted that the only decisions required to be made by the Public Guardian were in relation to support services for KZS. His National Disability Insurance Scheme (NDIS) plan is due for review in September 2021 and the Public Guardian considers there will be a need for advocacy and liaison around the issue of KZS’ funding for support services.

17. Mr Y, KZS’ Support Coordinator at a healthcare provider said he supported a continuation of both an accommodation and services function in the order. He said KZS does at times leave his accommodation and this leads to concerns about his safety and whereabouts.

18. A copy of a community treatment order made by the Mental Health Review Tribunal on 7 October 2020 for six months was provided to me. As a result of that order KZS’ treatment and support for his mental illness will occur under the Mental Health Act.

19. A report of Ms X, Occupational Therapist and KZS’ Case Manager at regional NSW Mental Health Service, says KZS has gone missing from his accommodation at the boarding house on multiple occasions. He is reported to have gone to visit his brother in another suburb in regional NSW. Ms X raises concerns that when this happens KZS is at risk of relapse of his mental illness as he does not take his prescribed oral medication. In the last couple of weeks KZS left his accommodation to visit his sister in another suburb in regional NSW which again put him at risk of relapse due to non-compliance with his medications and also exposed him to the risk of neglect and exploitation. As the Public Guardian did not have authority to authorise others such Police and Ambulance to return KZS to his accommodation this had to be negotiated with KZS’ sister. KZS required hospitalisation due to his mental state deteriorating significantly with him becoming paranoid and reportedly carrying a knife while at his sister's residence.

20. There was nothing in the evidence before me to suggest that the making of a further guardianship order would have a detrimental impact on KZS’ existing family relations. Although he has contact with some of his six siblings, I accept the evidence available to me that they are not in a position to provide him with informal support with decision making.

21. Giving KZS’ welfare and interests paramount consideration, I decided to make a further guardianship order with the guardian having the functions of accommodation and services. I accepted the evidence available to me that KZS does at times leave his accommodation and a continuation of the accommodation function with the authority to authorise others to implement decisions about his accommodation will enable him to be safely returned to his accommodation if he leaves. In reaching this decision I have also placed significant weight on the principle in s 4 of the Guardianship Act that requires that the Tribunal exercise its statutory powers to protect persons with a disability from abuse, neglect and exploitation. I accept the evidence of KZS’ case manager that his mental illness and cognitive impairment render him a vulnerable individual.

22. I accept the submission of the Public Guardian that KZS will require decisions to be made about his support services so that he can receive an optimal level of funding for his support needs.

23. KZS’ treatment for his mental illness will be covered under the Mental Health Act for at least the next six months. Coupled with the fact that the Public Guardian has not been approached for consent to any medical treatment not covered by the community treatment order during the term of the current order I considered that there was no longer a need for this function or the health care function to continue. If necessary one-off applications could be made to the Tribunal for consent to treatment.

Who should be appointed as the guardian and how long should the order last?

24. The Tribunal has previously appointed the Public Guardian as KZS’ guardian. As there was no private individual available to appoint I reappointed the Public Guardian.

25. I decided to make an order for 12 months. It is likely that decisions on the issues identified will be required over this period of time. It is appropriate to again review the order at the end of the term of the order to determine if it should continue, be varied in some way or allowed to lapse.

REVIEW OF REVIEWABLE FINANCIAL MANAGEMENT ORDER

What did the Tribunal have to decide?

26. On reviewing the financial management order the Tribunal must confirm, confirm and vary or revoke the financial management order.

27. The Tribunal may revoke the financial management order only if:

1. it is satisfied that KZS is capable of managing his affairs; or

2. it considers that it is in the best interests of KZS that the order be revoked.

28. The Tribunal may also review the appointment of the manager if it considers it appropriate to do so.

29. On reviewing the appointment of the manager, the Tribunal may either confirm or revoke the appointment. The Tribunal may revoke the appointment under review only if:

1. The appointed manager seeks the revocation, or

2. The Tribunal is satisfied that it is in the best interests of KZS that the appointment be revoked.

30. In this matter the issues for the Tribunal were:

• Is KZS capable of managing his affairs?

• Is it in the best interests of KZS that the order be revoked?

Should the order be revoked because KZS has regained the capability to manage his affairs?

31. KZS said he would like to be able to manage his own financial affairs. Apart from his view that he could manage his own finances there was no independent evidence available to me that would support KZS’ view.

32. The report of Dr Z, Psychiatrist, referred to earlier in these reasons makes clear that KZS in her view is not able to manage his own finances as a result of the impact of his significant cognitive impairment.

33. As there was insufficient evidence before me to support a finding that KZS had regained the capability to manage his financial affairs the order should not be revoked on this basis.

Should the order be revoked because it is in the best interests of KZS?

34. The evidence of Mr Y, KZS’ NDIS support coordinator was that the financial management order has been instrumental in supporting KZS to live in secure housing and in turn to engage with support workers and his treating team.

35. Despite some dissatisfaction and frustration on KZS’ part with the current financial management order, there is no doubt his situation has improved significantly at least in part due to the order being in place. His mental illness and his significant level of cognitive impairment render him a vulnerable individual.

36. I accept the uncontradicted evidence available that the financial management order is playing an important role in KZS being able to maintain secure housing and also place him in a position to engage with his support workers and treating team at Community Mental Health Service in regional NSW. I was not persuaded that the order should be revoked in the best interests of KZS.

37. I therefore confirmed the financial management order made on 9 April 2020 apart from the requirement that it be reviewed in six months' time.

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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: 03 May 2022