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

The Tribunal dismissed the application for a guardianship order.
The Tribunal appointed the NSW Trustee and Guardian as financial manager for Ms LBL.

Background

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

Guardianship

What did the Tribunal have to decide?

The Tribunal had to decide:

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

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: LBL [2016] NSWCATGD 22
Case: [2016] NSWCATGD 22
Decision Date: 29 September 2016

CaseChat Overview and Summary

The case before the court involved an application for a guardianship order in relation to an individual under the guardianship and administration legislation in Queensland. The applicant sought to be appointed as the guardian to make decisions regarding the personal and financial matters of the individual. The respondent to the application was the relevant state authority, which opposed the application on the grounds that there was already a person available and willing to act as the individual's advocate, and that the principle of least restriction should be applied. The case was heard in the Queensland Civil and Administrative Tribunal.

The legal issues before the court included whether the principle of least restriction applied, given that a person responsible was available and willing to act as an advocate, and whether there was a need for a guardianship order to be made. The court was also required to consider whether an order for financial management was necessary and, if so, who should be appointed as the financial manager. The court considered the evidence and submissions from both parties and relevant legislative provisions, including the National Disability Insurance Scheme nominee provisions.

The court found that the principle of least restriction applied, and that the person responsible available and willing to act as an advocate should continue to do so. The court was satisfied that the individual's needs could be met without the imposition of a guardianship order. However, the court did consider that an order for financial management was necessary to ensure the individual's financial affairs were properly managed. The court appointed the NSW Trustee and Guardian as the financial manager, given their expertise and experience in managing the financial affairs of individuals with disabilities.

The court dismissed the application for a guardianship order and made an order for financial management, appointing the NSW Trustee and Guardian as the financial manager.

Orders

Orders of the court

Application for guardianship dismissed.

Financial management order made; NSW Trustee and Guardian appointed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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)).