NFC

[2016] NSWCATGD 51

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	NFC [2016] NSWCATGD 51
Hearing dates:	21 December 2016
Date of orders:	21 December 2016
Decision date:	21 December 2016
Jurisdiction:	Guardianship Division
Before:	L Organ, Senior Member (Legal) Dr B McPhee, Senior Member (Professional) D Sword, General Member (Community)
Decision:	The application for a guardianship order to be made for Ms NFC is dismissed.
Catchwords:	GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – no access request made – 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:	Ms NFC (subject person) Mrs IDX (applicant) The NSW Public Guardian
File Number(s):	7505
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 made by Mrs IDX for a guardianship order for Ms NFC.

Background

2. Ms NFC is a 54-year-old woman who resides in group home accommodation in regional NSW that is managed by Family and Community Services (FACS). Ms NFC is reported to have a diagnosis of an intellectual disability.

3. Ms NFC is supported and in regular contact with her sister, Mrs IDX who resides in regional NSW.

4. Ms NFC has been known to the Tribunal since 7 March 1994 when the Public Guardian was appointed as a guardian for two months. This order was reviewed and renewed on a number of occasions until 8 May 2003 when the order lapsed.

5. On 14 October 2016, the Tribunal received an application for a guardian to be appointed for Ms NFC from Mrs IDX. Mrs IDX has proposed herself to be appointed guardian in order to make decisions on her sister's behalf in relation to the National Disability Insurance Scheme (NDIS).

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.]

GUARDIANSHIP APPLICATION

What did the Tribunal have to decide?

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

• Is Ms NFC someone for whom the Tribunal could make an order because she has a disability which prevents her 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 Ms NFC someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

8. 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 the Act).

9. There was no dispute in this matter that Ms NFC lacks capacity to make informed lifestyle decisions. A report of Dr Z undated but received by the Tribunal on 14 October 2016 states that Ms NFC has an intellectual disability of moderate severity which necessitates 24-hour care and assistance with all activities of daily living. In Dr Z’s opinion, Ms NFC is unable to make health and lifestyle decisions.

10. The Tribunal accepted the uncontested evidence of Dr Z referred to above. This evidence satisfied the Tribunal that Ms NFC has a disability which prevents her making important life decisions. She is a person for whom the Tribunal could make a guardianship order.

11. The decision at the hearing turned on whether there was a current need for a guardianship order.

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

12. 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.

13. 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).

14. The Tribunal was not able to obtain Ms NFC’s views about the application due to her intellectual disability.

15. Mrs IDX told the Tribunal that her primary motivation for the application was because of the introduction of the NDIS. Mrs IDX understands Ms NFC will be eligible for a range of additional services once the NDIS is rolled out in the area where Ms NFC lives. In particular Ms NFC notes that FACS will be withdrawing their services as a result of the privatisation of disability services that is occurring.

16. Mrs IDX conceded that there were no changes currently proposed to Ms NFC’s accommodation although as set out above Mrs IDX was concerned that she should have full authority to negotiate with NDIS planners and the new service providers. An application to the NDIS has not been made however, Mrs IDX anticipates that Ms NFC will be eligible given her circumstances.

17. Mrs IDX said Ms NFC’s health has been stable. She acknowledged that she is recognised as Ms NFC’s person responsible but would like to ensure that she will be able to make medical treatment decisions on behalf of Ms NFC in the future.

18. A Team Leader at FACS participated in the hearing. She confirmed the transition that is occurring from FACS to private service providers under the NDIS. She said Mrs IDX has been involved in decisions that have been made to date on behalf of Ms NFC and she has been very responsive to any requests made of her.

19. Ms Lauren Hirst, Principal Guardian at the Office of the Public Guardian participated. After hearing all the evidence she said she did not think that there was a need for a guardianship order to be made as there were sufficient informal supports in place for decision making to occur for Ms NFC.

20. The Tribunal has made clear in a number of recent decisions including KTT [2014] NSWCATGD 6 and HKO [2016] NSWCATGD 14, that where there is someone available such as a family member or carer to become involved as a person’s nominee under the NDIS, then there is usually no need for the appointment of a guardian for the purpose of dealing with issues such as preparation, review or replacement of a participant’s plan or the management of funding for supports under the plan.

21. It was clear to the Tribunal from the evidence given by all participants, that Mrs IDX has been a committed, effective advocate on behalf of Ms NFC over the years and continues to fulfil this role. Based on all of the evidence provided, the Tribunal decided not to make a guardianship order. The undisputed evidence is that there are no current accommodation or services decisions to be made for Ms NFC that cannot be made informally. The Tribunal saw it as practicable for services to be provided to Ms NFC without the need for a guardianship order.

22. There is no evidence of a need for a guardian to have either a health care or medical and dental consent function. The Tribunal is satisfied that if Ms NFC’s treating doctors consider she is not able to give informed consent to any treatment she requires, that Mrs IDX can give consent on her behalf as her “person responsible” under the Act.

23. Accordingly, the Tribunal dismissed the application for a guardianship order. If Ms NFC’s circumstances change it is open to any person with a genuine concern for her welfare to bring a further application to the Tribunal.

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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: 16 March 2017