LBL

[2016] NSWCATGD 22

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

LBL [2016] NSWCATGD 22

Hearing dates:

29 September 2016

Date of orders:

29 September 2016

Decision date:

29 September 2016

Jurisdiction:

Guardianship Division

Before:

Simpson J, Senior Member (Legal)
Duffy F, Senior Member (Professional)
Epstein-Frisch B, General Member (Community)

Decision:

Application for guardianship dismissed.

Financial management order made; NSW Trustee and Guardian appointed.

Catchwords:

GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme nominee provisions – person responsible available and willing to act and advocate – principle of least restriction – application dismissed

FINANCIAL MANAGEMENT – application for financial management order – need for an order – NSW Trustee and Guardians appointed

Legislation Cited:

National Disability Insurance Scheme Act 2013 (Cth), s 100
Guardianship Act 1987 (NSW), ss 3E, 4, 14(2), 33A(4)

Cases Cited:

HKO [2016] NSWCATGD 14
IF v IG [2004] NSWADTAP 3
KCG [2014] NSWCATGD 7

Category:

Principal judgment

Parties:

Ms LBL (subject person)
Mr MPX (applicant)
The NSW Trustee and Guardian
The NSW Public Guardian

Representation:

NIL

File Number(s):

2553

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.

2. The Tribunal appointed the NSW Trustee and Guardian as financial manager for Ms LBL.

Background

3. Ms LBL is a 44-year-old woman with intellectual disability who lives in a group home at northwest Sydney run by Ageing, Disability and Homecare (“ADHC”). Ms LBL has a very close relationship with her twin sister who also lives in the group home. Ms LBL has no other involved family.

4. Ms LBL is currently transitioning from her accommodation and support being funded by ADHC to it being funded by the National Disability Insurance Scheme (“NDIS”). There is also a parallel process of ADHC tendering out its services to the non-government sector.

5. Mr MPX, group home support worker, applied for guardianship and financial management orders.

Guardianship

What did the Tribunal have to decide?

6. The Tribunal had to decide:

1. Does Ms LBL have a disability which prevents her 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?

7. In deciding under (2) above whether to make a guardianship order, the Tribunal needed to take account of all relevant factors, including those listed in section 14(2) of the Guardianship Act 1987 (NSW). These relate to the views of Ms LBL, any spouse and unpaid carer, preserving family relationships, preserving cultural and linguistic environments, and the practicability of services being provided without a guardianship order. The Tribunal could be guided by the principles in section 4 of the Guardianship Act which cover some of the same issues as section 14(2) but also emphasise minimum intrusion on a person’s freedom, encouragement of self-reliance and a normal life in the community, protection from neglect, abuse and exploitation and the person’s interests being paramount. The Tribunal ultimately has a broad discretion whether to make a guardianship order (IF v IG & Others [2004] NSWADTAP 3).

Does Ms LBL have a disability which prevents her from being able to make some important life decisions?

8. The professional reports from ADHC and a general practitioner described Ms LBL as having a moderate intellectual disability. The Tribunal had a good conversation with Ms LBL in the hearing. Her presentation was strongly consistent with intellectual disability. She showed good awareness of her major activities and the names of her doctors but she showed difficulty with more abstract concepts such as the National Disability Insurance Scheme. The Tribunal was inclined to think that Ms LBL’s intellectual disability prevented her from being able to make important life decisions. However, the evidence of this was limited and the Tribunal ultimately did not need to make a finding since, in any event, it did not see the need for a guardianship order.

Should the Tribunal make a guardianship order?

9. The Tribunal found it difficult to obtain views from Ms LBL in relation to abstract concepts like guardianship.

10. Mr MPX sought a guardian to represent Ms LBL in NDIS planning and the process of the tender out of her group home. With Ms LBL not having involved family other than her sister, he said that he had been instructed to make the application by his supervisor Ms Z.

11. Ms Z is the coordinator of the group home. She told the Tribunal that her supervisors had told her that NDIS procedures required a guardian to be appointed for a person in Ms LBL’s situation.

12. In HKO [2016] NSWCATGD 14 the Tribunal summarised the NDIS legislative structure and practice in relation to who can sign an access request and participate in NDIS planning processes for a participant who lacks capacity. The legislation calls for the access request to be signed by the person with disability or someone with authority to sign on behalf of the person. However, in KCG [2014] NSWCATGD 7, the Special Counsel for the National Disability Insurance Agency (“NDIA”) said that, in practice, generally anyone can sign an access request on behalf of a prospective participant. Also, where a person lacked capacity to make planning decisions, the NDIA would enquire about the person’s wishes and other relevant facts and then make a decision about a plan.

13. In more recent cases, the Tribunal has been getting inconsistent evidence in relation to whether or not the NDIA seeks a guardian for a person with major decision-making disability and who does not have an involved family member or advocate to support the person through the NDIS processes.

14. The Tribunal therefore obtained input from the NDIA to the current hearing. The Tribunal received a submission headed Representation mechanisms for participants with significant cognitive impairment and Ms Lee Davids, Director Advisory Team NDIA, attended the hearing.

15. The written submission said that the NDIS access request form (“ARF”) did not limit who could request access on behalf of a prospective NDIS participant and “the agency applies a common-sense test to an ARF and processes the request if it appears to be provided by a person with the prospective participant’s best interests in mind”. In the hearing, Ms Davids said that an access request from a group home staff member would not be appropriate but a request from a senior officer of the service provider organisation would be acceptable.

16. The submission went on that, where a participant appeared unable to understand issues central to the development of a participant’s plan of supports, the NDIA would first consider whether the person could be supported to understand the situation and express their wishes. If that was unsuccessful, the NDIA would not generally expect a guardian to be appointed for a person who lacked capacity. The NDIA would rely on the participant’s informal support network, which Ms Davids said comprised people like family or close friends. The NDIA relies on service providers to say who is in the person’s informal support network.

17. The submission said that as last resort the NDIA may appoint a nominee in preference to considering guardianship. Ms Davids said that the NDIA seldom appointed nominees and did not appoint service providers as nominees due to their conflict of interest.

18. The submission said that planners often encounter support persons who have a possible conflict of interest. These support persons are not excluded from a planning discussion but planners are required to focus on the needs of the participant. Ms Davids said that the planning process can be tricky where a person has no informal supports and only paid service providers. However, people like group home staff can make suggestions in relation to extra supports a person needs.

19. Ms Davids said that a person like Ms LBL would be allocated a support coordinator in her participant plan unless an informal support person wanted to take on this additional role. The NDIA’s preference is for support coordinators to be independent from other service provision but the limited current availability of independent support coordinators has meant that the NDIA has to allow some existing service providers to fill this role

20. The Tribunal asked Ms Davids about processes to seek a review of a plan which is perceived as unsatisfactory, through the NDIA internal review process and then if necessary the Administrative Appeals Tribunal. Section 100 of the National Disability Insurance Scheme Act 2013 (Cth) says that these reviews may be requested by “a person directly affected by the reviewable decision”.

21. Ms Davids said that these processes could be pursued by a representative of a person but not by a service provider. In practice, the representative would probably be an informal support person such as a family member or advocate, or a guardian or a nominee.

22. One unpaid support that Ms LBL does have is Mrs NAH who is a long-time advocate for another resident of the group home and who has also advocated for all of the residents from time to time. Mrs NAH is a regular visitor to the home. Mrs NAH was willing to support Ms LBL through the NDIS processes and the ADHC tender out of its services.

23. Ms Davids said that she did not see the need for a guardian to be appointed for Ms LBL. Ms LBL showed that she was able to express a view about issues like where she should live. Also, Mrs NAH could support Ms LBL in the NDIS planning processes and any review application, as a friend and informal support person

24. The Tribunal did see Ms LBL as needing a person independent from service providers to work with her to safeguard her interests through the NDIS planning processes and the ADHC tender out of its services.

25. Where there is no family member, friend or advocate able to take this role, the Tribunal has in various cases appointed the Public Guardian for this purpose.

26. In HKO [2016] NSWCATGD 14, the Tribunal emphasised the importance of Mr HKO, who had a severe intellectual disability and was non-verbal, having an independent person to safeguard his interests through at least the first and second NDIS plan processes and the tender out of ADHC services. The NDIS plans would be crucial to Mr HKO’s interests and community inclusion and Mr HKO would benefit from enhancements to his current service provision. The Public Guardian’s experience supported the view that people who did not have advocacy from families or elsewhere may not get their maximum entitlements from the NDIS. 36,655 existing clients of disability services in NSW were due to transition into the NDIS in 2016-17 and a further 35,570 in 2017-18. The parallel process of the NSW Government plan tendering out its disability services to the non-government sector would include consultation with residents of supported accommodation in relation to which of a short list of providers they would prefer to take over the group of services, of which their home is part. In the absence of an involved family member or friend, there would presumably have been no one for the NDIA to appoint as nominee for Mr HKO even if the NDIA had pursued this course.

27. Here, Mrs NAH was willing to provide informal support to Ms LBL through the current processes. Mrs NAH impressed the Tribunal as a very experienced, confident and thoughtful advocate for people with intellectual disability. She has identified herself as an advocate for another resident of the group home for many years but was also willing to informally support Ms LBL and her sister through the current transitional period in their lives. Mrs NAH identified a number of enhancements to service provision that could occur for Ms LBL and said that she would discuss ideas with Ms LBL herself. She also said that she has known a lot of group homes and service providers and would be discerning about which non-government providers would be appropriate.

28. Ms LBL was open to the idea of Mrs NAH helping her deal with the NDIS.

29. The Tribunal explored with Mrs NAH whether any conflict of interest might arise if she was informally supporting a number of residents. She did not see any current conflict but was very alert to this issue and said that if a conflict arose she would need to step back from supporting one or more of the residents. There may be conflict of interests between those of Ms LBL and her twin sister and the woman for whom Mrs NAH’s advocates on the one hand and one another resident in the house. However, the Public Guardian is already guardian for that other resident.

30. The Tribunal also considered the issue of health care. There was no apparent problem with Ms LBL having access to appropriate health care and Mrs NAH was willing to act as “person responsible” for her. This would be on the basis of her having regular contact with Ms LBL and taking an active interest in her welfare (Guardianship Act, sections 33A (4) and 3E). Doctors and dentists generally are required to get consent from a person responsible where a person does not understand the nature and effect of particular treatment.

31. In view of the NDIA’s practices in relation to access requests and development of participant plans, and in view of the availability of Mrs NAH to informally support Ms LBL with the NDIS and ADHC and to act as person responsible for her, the Tribunal saw it as practicable for services to be provided to Ms LBL without a guardianship order.

32. In these circumstances, even assuming Ms LBL is unable to make some important life decisions, guardianship would have been an unnecessary intrusion. The Tribunal dismissed the application.

Financial management

33. The Tribunal had to decide:

1. Is Ms LBL incapable of managing her affairs?

2. Is there a need for another person to manage Ms LBL’s affairs and is it in her best interests for a financial management order to be made?

3. If so, who should be appointed financial manager?

34. Ms LBL has approximately $75,000 in savings including $67,000 in a term deposit. She receives a disability support pension and a small wage from her work at a disability enterprise. She has two small superannuation accounts.

35. In view of her intellectual disability, Ms LBL could be expected to have difficulties with management of her financial affairs. In the hearing she showed very limited awareness of her income and savings and the cost of major items. The Tribunal accepted that Ms LBL was incapable of managing her financial affairs and needed someone else to do so.

36. Mr MPX told the Tribunal that the current system is for staff to sign bank transactions for Ms LBL and look after her money.

37. In view of the amount of Ms LBL’s savings and with a change of service provider looming, the Tribunal was clear that it was in Ms LBL’s best interests that it make a financial management order.

38. Mrs NAH did not wish to be appointed as financial manager but said that she was experienced in dealing with the NSW Trustee and Guardian to seek money for people with intellectual disability.

39. Ms LBL said that she was okay with the NSW Trustee and Guardian being appointed.

40. In the absence of an alternative, the Tribunal was clear that it should appoint the NSW Trustee and Guardian.

41. The NSW Trustee and Guardian recommend that the NSW Trustee and Guardian act in consultation with group home staff and Mrs NAH.

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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: 31 October 2016