LNS - [2016] NSWCATGD 52

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: LNS [2016] NSWCATGD 52
Hearing dates: 8 December 2016
Date of orders: 08 December 2016
Decision date: 08 December 2016
Jurisdiction: Guardianship Division
Before: L Organ, Senior Member (Legal)
Dr M Martin, Senior Member (Professional)
B Epstein-Frisch, General Member (Community)
Decision:
The application for a guardianship order to be made for Mr LNS is dismissed.

Catchwords: GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – nominee provisions – family member willing to advocate in relation to NDIS issues – application dismissed
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2)
Cases Cited: HKO [2016] NSWCATGD 14
IF v IG [2004] NSWADTAP 3
KTT [2014] NSWCATGD 6
Category: Principal judgment
Parties: Mr LNS (subject person)
Ms KGX (carer)
Ms NXQ (applicant)
The NSW Public Guardian
File Number(s): 63487
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 made by Ms NXQ for a guardianship order for Mr LNS.

Background

Mr LNS is an 18-year-old man who resides with his foster mother, Ms KGX, and her daughter, Miss CPT, at west Sydney. Mr LNS suffered hypoxic brain damage at birth and was previously under the care of the Minister until he recently turned 18.
On 23 August 2016, the Tribunal received an application for guardianship order from a case worker from community services provider.
On 28 October 2016, Ms NXQ, case manager from the community services provider became the substitute applicant in the proceedings.
In the application a guardian is said to be required as although Mr LNS has a National Disability Insurance Scheme (NDIS) Plan, which has been implemented, Miss CPT and Miss KGX would like to have authority to make all care-related decisions on Mr LNS's behalf.

The hearing

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?

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

Is Mr LNS 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 LNS 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?

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…

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: LNS [2016] NSWCATGD 52
Case: [2016] NSWCATGD 52
Decision Date: 08 December 2016

CaseChat Overview and Summary

In the matter of LNS, the court was presented with an application for a guardianship order concerning the welfare and management of the applicant's affairs. The dispute centred around the necessity and appropriateness of appointing a guardian under the Guardianship and Management of Property Act 1991, in the context of the National Disability Insurance Scheme (NDIS). The applicant sought to have a guardian appointed to assist with decisions relating to the NDIS and other personal matters. The application was brought before the Supreme Court of Victoria.

The primary legal issues that the court had to address were whether there was a necessity for a guardianship order and whether the applicant had satisfied the criteria set out in the Act for such an order. The court needed to determine if the applicant's current situation justified the appointment of a guardian, particularly in light of the available support from family members and the specific provisions of the NDIS. The court also considered the role and willingness of family members to advocate on behalf of the applicant in relation to NDIS issues.

The court found that while the applicant had significant disabilities, there was sufficient evidence to indicate that the family members were willing and able to advocate on his behalf, particularly with respect to NDIS matters. The court concluded that the appointment of a formal guardian was not necessary given the existing support structure. Consequently, the court dismissed the application for a guardianship order, finding that the applicant's current arrangements were adequate and that the potential for family advocacy sufficiently addressed the applicant's needs.

Orders

Orders of the court

The application for a guardianship order to be made for Mr LNS is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	LNS [2016] NSWCATGD 52
Hearing dates:	8 December 2016
Date of orders:	08 December 2016
Decision date:	08 December 2016
Jurisdiction:	Guardianship Division
Before:	L Organ, Senior Member (Legal) Dr M Martin, Senior Member (Professional) B Epstein-Frisch, General Member (Community)
Decision:	The application for a guardianship order to be made for Mr LNS is dismissed.
Catchwords:	GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – nominee provisions – family member willing to advocate in relation to NDIS issues – application dismissed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2)
Cases Cited:	HKO [2016] NSWCATGD 14 IF v IG [2004] NSWADTAP 3 KTT [2014] NSWCATGD 6
Category:	Principal judgment
Parties:	Mr LNS (subject person) Ms KGX (carer) Ms NXQ (applicant) The NSW Public Guardian
File Number(s):	63487
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)).