NZO - [2014] NSWCATGD 9

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NZO [2014] NSWCATGD 9
Hearing dates: 23 January 2014
Decision date: 20 March 2014
Jurisdiction: Guardianship Division
Before: Schyvens M, Deputy President
Oxenham M, Senior Member (Professional)
Epstein-Frisch B, General Member (Community)
Decision:
Limited guardianship order for a period of 12 months; Public Guardian appointed with accommodation, services and advocacy functions.

Catchwords: GUARDIANSHIP - National Disability Insurance Scheme - need for an order - need for independent advocacy.
Legislation Cited: Guardianship Act 1987 (NSW)
Cases Cited: KCG [2014] NSWCATGD 7
Category: Principal judgment
Parties: Miss NZO
Ms LYE (Applicant)
The Public Guardian
File Number(s): 44967
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 appointed the Public Guardian as Miss NZO's guardian for a period of 12 months to make decisions about her accommodation, about what services which she should receive and to advocate generally for her as set out in the Tribunal's order.

Background

Miss NZO is a 68 year-old woman who lives in a privately rented house in Regional NSW with three other residents. Miss NZO receives daily "drop-in support" provided by an In-Home Support Service which is a division of the Ageing, Disability & Home Care (ADHC) Accommodation Service.

Ms LYE lodged an application for a guardianship order for Miss NZO on 21 October 2013. Ms LYE is a Team Leader at Accommodation Support Services at ADHC in regional NSW. Ms LYE states in her application that Miss NZO has an intellectual disability and that she requires the appointment of a guardian to make substitute decisions for her in certain areas of her life, primarily due to the implementation of the National Disability Insurance Scheme ("NDIS").

The Hearing and subsequent determination of the Tribunal

At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing. [Appendix removed for publication].

Ms LYE's application for the appointment of a guardian was listed for hearing in Regional NSW on 23 January 2014 to assist the participation of Miss NZO in the hearing. Miss NZO attended the hearing.

At the hearing of 23 January 2014 whilst the Tribunal was satisfied that it had received sufficient evidence to determine some elements of the application, it was not satisfied that sufficient evidence was available to determine whether there was a current need for Miss NZO to have a guardian appointed. This was primarily due to insufficient evidence being available to the Tribunal in relation to the impact of the implementation of the NDIS upon Miss NZO. Accordingly, the Tribunal adjourned the proceedings for a period of approximately 6 weeks and issued detailed directions and notations to the parties which included the following direction:

"The Tribunal will proceed to make final orders in…

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: NZO [2014] NSWCATGD 9
Case: [2014] NSWCATGD 9
Decision Date: 20 March 2014

CaseChat Overview and Summary

The case before the court involved an application for a limited guardianship order concerning a person under the guardianship and administration framework established by the Guardianship and Administration Act 2000. The applicant sought to ensure the welfare and protection of the individual, considering their incapacity to make certain decisions due to a disability. The respondent, who was the individual's mother, opposed the application, raising concerns about the necessity and appropriateness of a guardianship order. The court was tasked with determining whether a limited guardianship order was warranted and, if so, what form it should take.

The primary legal issues before the court were whether the individual required a guardianship order and, if so, the specific functions that the guardian should undertake. The court had to consider the individual's capacity to make decisions, the risks associated with not having a guardian, and the suitability of various guardianship options. The court also needed to determine the appropriate duration of the guardianship order and whether independent advocacy was necessary for the individual's welfare.

The court found that the individual required a guardianship order due to their incapacity to make certain decisions related to accommodation, services, and advocacy. The court noted the individual's history of vulnerability and the potential risks if a guardianship order was not in place. After considering the evidence, the court decided that a limited guardianship order for a period of 12 months was appropriate. The court appointed the Public Guardian to undertake the accommodation, services, and advocacy functions. The court also concluded that independent advocacy was necessary to ensure the individual's interests were properly represented and protected. The court's decision balanced the individual's need for support with their right to autonomy and participation in decision-making processes.

The final orders of the court included a limited guardianship order for a period of 12 months, with the Public Guardian appointed to perform the accommodation, services, and advocacy functions. The court also directed that independent advocacy services be provided to the individual, ensuring that their voice was heard and their needs were met throughout the guardianship period.

Orders

Orders of the court

Limited guardianship order for a period of 12 months; Public Guardian appointed with accommodation, services and advocacy functions.

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:	NZO [2014] NSWCATGD 9
Hearing dates:	23 January 2014
Decision date:	20 March 2014
Jurisdiction:	Guardianship Division
Before:	Schyvens M, Deputy President Oxenham M, Senior Member (Professional) Epstein-Frisch B, General Member (Community)
Decision:	Limited guardianship order for a period of 12 months; Public Guardian appointed with accommodation, services and advocacy functions.
Catchwords:	GUARDIANSHIP - National Disability Insurance Scheme - need for an order - need for independent advocacy.
Legislation Cited:	Guardianship Act 1987 (NSW)
Cases Cited:	KCG [2014] NSWCATGD 7
Category:	Principal judgment
Parties:	Miss NZO Ms LYE (Applicant) The Public Guardian
File Number(s):	44967
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))