NKM

[2016] NSWCATGD 55

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	NKM [2016] NSWCATGD 55
Hearing dates:	1 November 2016
Date of orders:	01 November 2016
Decision date:	01 November 2016
Jurisdiction:	Guardianship Division
Before:	J Kearney, Senior Member (Legal) Dr M Martin, Senior Member (Professional) L Porter, General Member (Community)
Decision:	The application for guardianship and financial management orders to be made for Mr NKM is dismissed.
Catchwords:	FINANCIAL MANAGEMENT – application for financial management order – National Disability Insurance Scheme – no need for an order – nominee – application dismissed   GUARDIANSHIP – application for guardianship order – no need for an order – family members willing to advocate – application dismissed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 4, 4(b), 14(2)
Cases Cited:	IF v IG [2004] NSWADTAP 3
Category:	Principal judgment
Parties:	Mr NKM (subject person) Mrs FYO and Mr BKP (applicants) The NSW Public Guardian The NSW Trustee and Guardian
Representation:	Nil
File Number(s):	63409
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

GUARDIANSHIP APPLICATION

What the Tribunal decided

1. The Tribunal dismissed the application for guardianship in relation to Mr NKM made by Mrs FYO and Mr BKP.

FINANCIAL MANAGEMENT APPLICATION

What the Tribunal decided

2. The Tribunal dismissed the application for the appointment of a financial manager.

Background

3. Mr NKM is a 20-year-old man who resides with his parents Mr BKP and Mrs FYO in the family home at northwest Sydney. Mr NKM has been diagnosed with Batten’s disease and is profoundly disabled with quadriparesis, blindness seizures with consequent complex high-care medical needs. He is non-verbal and requires 24-hour care. His father, Mr BKP, is his full-time carer with additional paid daily care while his mother, Mrs FYO, works full-time and is also closely involved in his care.

4. Mr BKP and Mrs FYO applied for guardianship and financial management for Mr NKM.

The hearing

5. 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.]

6. Mr NKM did not attend the hearing. The Tribunal noted medical reports indicating Mr NKM’s extensive disabilities. Mrs FYO said her son was not well enough to attend the hearing and the Tribunal decided to proceed with the hearing in his absence.

7. Mrs FYO also said she was speaking on behalf of herself and her husband, Mr BKP, who could not attend as he was caring for Mr NKM.

FINANCIAL MANAGEMENT APPLICATION

What did the Tribunal have to decide?

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

• Is Mr NKM incapable of managing his affairs?

• Is there a need for another person to manage Mr NKM’s affairs and is it in his best interests for a financial management order to be made?

• If so, who should be appointed financial manager?

Is Mr NKM incapable of managing his affairs?

9. The Tribunal evidence included expert reports from two neurologists, from a general practitioner, and from an occupational therapist, all of whom describe the profound disabilities Mr NKM suffers that include being non-verbal, blind and deaf, incapable of controlled movement, feeding via a gastrostomy tube and suffering siezures. The Tribunal accepts this evidence and finds that Mr NKM is incapable of managing his own affairs.

Is it in Mr NKM’s best interest that a financial management order be made?

10. Mrs FYO told the Tribunal that her son, Mr NKM, does not have any assets apart from personal effects and bank accounts. He receives the disability support pension that is paid into an account in his name. Mrs FYO has access to that account and withdraws money to pay for Mr NKM’s needs such as clothes or medications. He lives in his parents’ home and does not pay board and has a second savings account with a balance of about $6,000.

11. His father, Mr BKP, is Mr NKM’s Centrelink nominee and Mrs FYO is his National Disability Insurance Scheme (NDIS) nominee. Funding for the daily care services was previously through Ageing, Disability and Home Care but since 30 September 2016, is paid by NDIS. Mrs FYO is currently involved in a review process with NDIS to obtain a better funding package from NDIS.

12. The Tribunal heard that there were no problems in administering Mr NKM’s financial affairs informally, and none were anticipated. The Tribunal decided there was no need to appoint a financial manager because Mr NKM’s affairs were being managed successfully to date, without an order, and no need was identified for the future.

13. The Tribunal was not satisfied that is in the best interests of Mr NKM that a financial management order be made. The application for financial management should be dismissed.

GUARDIANSHIP APPLICATION

What did the Tribunal have to decide?

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

• Is Mr NKM 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?

Does Mr NKM have a disability which prevents him from being able to make important life decisions?

15. The Tribunal refers to the expert evidence set out above and finds that Mr NKM is incapable of making important life decisions

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

16. In deciding whether to make a guardianship order, the Tribunal must consider all relevant factors, including those listed in section 14(2) of the Guardianship Act 1987 (NSW). These relate to the views of Mr NKM, 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 is guided by the principles in section 4 of the Guardianship Act, and views Mr NKM’s interests as its paramount consideration. The Tribunal ultimately has a broad discretion whether to make a guardianship order (IF v IG & Ors [2004] NSWADTAP 3).

17. The Tribunal was told by Mrs FYO that Mr NKM’s accommodation was secure. His medical and health care needs were being met by informal arrangement where one or other of his parents make decisions for him and act as “person responsible” in providing consent to treatment. There had been no problems experienced in performing that role as the parents were recognised by hospital staff and doctors as “person responsible” for Mr NKM. There was no conflict within the family about those arrangements. It is noted that Mrs FYO is accepted as Mr NKM’s nominee by NDIS for the provision of funding for services.

18. The Tribunal accepted Mrs FYO’s evidence and questioned the need for a guardianship order with her at the hearing. The applicant said she had applied for a guardianship order because it was suggested by members of the medical profession that a guardianship order was necessary for her son. However, the Tribunal considered that there was no need for a guardianship order in the present circumstances because informal arrangements were working successfully and there was no need to restrict Mr NKM’s freedoms by the imposition of a formal order (refer to section 4(b), Guardianship Act).

19. The Tribunal decided on the basis of all of this evidence that a guardianship order should not be made.

20. Accordingly, it is not necessary to consider the other issues outlined above.

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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