SMN (Request to Withdraw Application for Review of Guardianship Order)

[2020] TASGAB 4

CITATION:	SMN (Request to Withdraw Application for Review of Guardianship Order) [2020] TASGAB 4
HEARING DATE(S):	4 February 2020
DATE OF ORDERS:	4 February 2020
DATE OF STATEMENT OF REASONS:	12 February 2020
BOARD:	Ms R Holder, President
APPLICATION:	Request to Withdraw Application for Review of Guardianship Order
CATCHWORDS:	Request to withdraw an Application; discretion of the Board
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas), ss 6, 20, Clause 6 Schedule 2 Part 1
PUBLICATION RESTRICTION:	This decision has been anonymised for the purpose of publication

Statement of Reasons

Background

1. On 3 February 2017 the Guardianship and Administration Board (‘the Board’) made a limited guardianship order for SMN pursuant to section 20 of the Guardianship and Administration Act 1995 (‘the Act’). On 1 February 2018 the Board continued a guardianship order for SMN, limiting the Public Guardian’s powers and duties to:

   i.Where SMN is to live either permanently or temporarily; and

   ii.Consent to any health care that is in the best interests of SMN and to refuse or withdraw consent to any such treatment, and;

   iii.Provision of services for SMN;

   iv.Providing consent to any reasonable measures required to convey SMN to, and cause her to remain at the place of residence as determined by the guardian;

   v.Giving instructions to a legal practitioner in respect of proceedings in the Magistrates Court involving Child Protection Services.

   This Order is in effect until 31 January 2021.

2. On 16 January 2020 Ms Nicky Targett, the Applicant Guardian from the Office of the Public Guardian (‘Ms Targett’) made an Application for Review of Guardianship Order (‘the Application’) with respect to SMN. The Application stated “I am requesting a review of the Order with a view to having it revoked. Please see Annual Report attached.” The Annual Report is dated 16 January 2020. In the Report Ms Targett stated:

   SMN’s Child Safety Services (CSS) custody matter was completed in late 2019….SMN remains homeless, however she has now been accepted as a participant of NDIS and has every opportunity to work towards her goal of obtaining stable accommodation…Now that SMN has an appointed Complex Needs Support Co-Ordinator, I believe supported decision making is the model that is likely to bring about the best outcome for her in the future…I don’t believe SMN has the need for a guardianship order at this time.

3. On 30 January 2020 the Applicant made a Request to Withdraw the Application for Review of Guardianship Order in respect of SMN, on the basis that:

   SMN’s circumstances have changed in that she is being considered for Supported Independent living funding through NDIS (the hope is that she will be finally be able to secure long term accommodation with support to assist her maintain her tenancy). SMN is going through a period of poor mental health…She is highly likely to be dismissive of important accommodation and support options offered by NDIS. I believe SMN has the need for a guardian to make decisions in relation to her accommodation and support.

4. On 4 February 2020 the Board declined to allow the withdrawal of the Application for Review of Guardianship Order.

Legislation

1. Pursuant to Clause 6, Schedule 2, Part 1 of the Act, the Board may allow a person to withdraw an application at any time before it is determined. This clause of the Act gives the Board full discretion as to whether to allow an application to be withdrawn, prior to its determination.

Determination

1. The Board determined the Request to Withdraw on 4 February 2020. The Board determined it appropriate to proceed to hearing in the circumstances. The Board wishes to question Ms Targett on the contents of her Annual Report and the alleged change ‘in circumstances’ referred to in her Request to Withdraw and also give any other party and indeed SMN the opportunity to attend and participate in the hearing, and express views and wishes.[1] The Board also wants to consider whether an Order is still needed and, if so, whether the current powers are still applicable to SMN’s present circumstances.  The Board will need to consider whether the powers, if still needed, remain in SMN’s best interests and are the least restrictive of SMN’s freedom and action as is possible in the circumstances.[2] The Board deems this necessary in light of the statement of Ms Targett that the Child Safety matter has been finalised and Ms Targett’s statement that the need for a guardian is in relation to accommodation and support decisions.

   [1] Guardianship and Administration Act 1995, s6.

   [2] Ibid.

2. The Board’s decision is:

   The Board does not allow the withdrawal of the Application for Review of Guardianship Order concerning SMN.