SNS

[2015] NSWCATGD 21

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	SNS [2015] NSWCATGD 21
Hearing dates:	23 June 2015
Date of orders:	23 June 2015
Decision date:	23 June 2015
Jurisdiction:	Guardianship Division
Before:	B Tearle, Senior Member (Legal) S Stone, Senior Member (Professional) D Crowley, General Member (Community)
Decision:	Limited guardianship order made for 12 months; private guardian appointed with alternate guardian; accommodation, healthcare, medical and dental, and services functions with authority to override objection
Catchwords:	GUARDIANSHIP – application for guardianship order – need for order when person with disability appointed relatives as enduring guardians – person objecting to treatment and admission to aged care facility – need for additional authority – enduring guardians appointed
Legislation Cited:	Guardianship Act 1987 (NSW)
Category:	Principal judgment
Parties:	Mr SNS (the protected person) Mr HAX (the applicant) The Public Guardian
File Number(s):	59409
Publication restriction:	Decisions of the Guardianship Division of the NSW 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 appointed Mr HAX as Mr SNS’s guardian, and Mr TCV as his alternative guardian, for a period of 12 months, to make decisions on his behalf about his accommodation, health care, medical and dental treatment and services, as set out in the Tribunal's Order.

2. The Tribunal gave the guardian the additional authority to call on others to assist in implementing his decisions concerning Mr SNS’s accommodation, and to override Mr SNS’s objections to major or minor medical treatment.

THE EVIDENCE AND THE TRIBUNAL'S REASONING

Reasons for this application

3. Mr SNS, who is 79 years old, usually lives alone in his own home at Regional NSW. However, at time of the hearing on 23 June 2015, Mr SNS was admitted as an inpatient of public hospital, following a fall at home. Mr SNS is reported to have an intellectual disability.

4. On 13 February 2001, Mr SNS appointed his brother, Mr HAX, and his nephew, Mr TCV, to be his enduring guardians, with the authority to operate separately. On the same day, Mr SNS appointed his brother and his nephew to be his attorneys under an enduring power of attorney, with the authority to operate jointly and severally.

5. Mr HAX applied to the Tribunal on 13 May 2015 for the appointment of a guardian for his brother. Mr HAX considered that his brother now needs a guardian, because home care services are not able to continue to assist Mr SNS in his home. However, Mr SNS is likely to object to placement in supported accommodation.

Identification of participants

6. Mr HAX, the brother of Mr SNS, prefers to be known as Mr HAX. Mr TCV, the nephew of Mr SNS, prefers to be known as Mr TCV. The Tribunal will use their preferred names in these written Reasons.

7. Mr TCV is the son of Mr HAX.

What did the Tribunal have to decide?

8. Before the Tribunal may make a guardianship order, it must be satisfied that:

• Mr SNS is a person with a disability within the meaning of the Guardianship Act 1987 (NSW);

• because of that disability/those disabilities, Mr SNS is totally or partially incapable of managing his person; and

• there is a need for a guardianship order to be made in relation to Mr SNS.

Conduct of the hearing

9. Mr SNS did not attend or participate in the hearing. Ms OLQ, a Social Worker in the Rehabilitation Unit of the public hospital, informed the Tribunal at the commencement of the hearing that Mr SNS had refused to take part. Ms OLQ confirmed that Mr SNS was aware that the hearing was taking place. Accordingly, it was not possible for the Tribunal to take account of Mr SNS’s views.

10. A list of the parties to the proceedings and witnesses at the hearing is contained in an appendix to these Reasons for Decision [appendix removed for publication].

Is Mr SNS a person with a disability?

11. The Tribunal must first consider whether Mr SNS is a person with a disability, within the meaning of the Guardianship Act.

12. The Tribunal had before it a report prepared on 5 May 2015 by Dr Z, Mr SNS’s general practitioner. In that report, Dr Z stated that Mr SNS has an intellectual disability. Although there are issues which would indicate a dementia, it is not possible for Mr SNS to undergo dementia testing because of his intellectual disability. Dr Z reported that Mr SNS also has a range of medical problems, including glaucoma and osteoporosis.

13. Ms QBT, a Social Worker in the Transitional Behavioural Assessment and Intervention Service (TBASIS) Unit of the public hospital, confirmed in a report prepared on 11 May 2015 that Mr SNS has a significant intellectual disability.

14. Ms KPC, the Manager of a regional NSW Ageing, Disability and Homecare (ADHC) Home Care Service, gave evidence that Mr SNS has been displaying challenging behaviours. His personal care and levels of hygiene have deteriorated in recent times.

15. Mr HAX confirmed during the hearing that Mr SNS is unable to make decisions for himself, given the extent of his intellectual disability.

16. On the basis of the evidence presented, the Tribunal found that Mr SNS is a person with a disability within the meaning of the Guardianship Act.

Is Mr SNS totally or partially incapable of managing his person?

17. After reviewing the evidence, the Tribunal also found that, because of that disability, Mr SNS is at least partially incapable of managing his person.

Is a guardianship order needed?

18. The Tribunal concluded that Mr SNS is in need of a guardian. The reasons for the Tribunal's decision appear below in the context of the discussion of the functions of the guardian.

19. In reaching its decision, and to the extent to which this was possible, the Tribunal also took account the matters outlined by Parliament in section 14 of the Guardianship Act, and in particular:

• the importance of preserving Mr SNS’s existing family relationships; and

• the practicability of services being provided to Mr SNS without the need for the making of such an order.

What functions should the guardian have?

�   Accommodation

20. Mr SNS usually lives alone in his own home at Regional NSW. However, at time of the hearing on 23 June 2015, Mr SNS was admitted as an inpatient of a public hospital, following a fall at home. Ms OLQ, a Social Worker in the Rehabilitation Unit of the public hospital, gave evidence during the hearing that Mr SNS now needs to be living in supported accommodation with 24-hour care.

21. Ms QBT, a Social Worker in the TBASIS Unit of the public hospital, advised in a report prepared on 11 May 2015 that neighbours and home care workers have raised concerns about Mr SNS’s escalating behaviours. Staff of a regional NSW ADHC home care service have indicated that they are not able to continue to manage Mr SNS’s situation safely, and they are considering removing their services, because of ongoing work health and safety concerns. The removal of services would place Mr SNS at risk of harm, exploitation and misadventure.

22. Ms QBT considers that Mr SNS now needs a permanent accommodation placement, but he is declining such a placement. Ms QBT confirmed during the hearing that Mr SNS cannot continue to live in his current accommodation. However, Mr SNS has refused to accept any accommodation option, other than to return to live in his own home.

23. Ms KPC confirmed that her organisation is unable to supply the level of services that Mr SNS would need if he were to remain living safely at home.

24. The Tribunal concluded that, given that there will be a need to make a decision about the most suitable accommodation for Mr SNS following his discharge from hospital, he needs to have a guardian with the authority to make decisions about his accommodation.

25. Dr Z advised in his written report that Mr SNS’s admission to a nursing home would be very much against Mr SNS’s wishes. Further, Mr SNS’s behavioural problems may make it impossible for him to be managed in a nursing home. Mr HAX confirmed that his brother has been living in the family home in Regional NSW since 1967, and he will not readily move into supported accommodation.

26. The Tribunal accepted the concerns expressed by Dr Z and Mr HAX. The Tribunal determined that it was appropriate to give the guardian the additional authority to call on others to assist in implementing his decisions concerning Mr SNS’s accommodation. This means that the guardian may employ the police or ambulance service to assist in moving Mr SNS to the chosen place of accommodation, to keep him there and to return him if he were to leave. The Tribunal expects that the guardian will not use these powers unless there is absolutely no other alternative in Mr SNS’s best interests.

�   Health care and Medical and Dental consents

27. The Tribunal accepted that the evidence presented at the hearing showed that, because of Mr SNS’s lack of decision-making ability, there is a clear need for him to have a substitute decision-maker with the functions of health care, and medical and dental consents.

28. Ms OLQ reported that Mr SNS has refused nursing care, and he has been engaging less with his health care providers. Ms OLQ gave specific evidence that Mr SNS had not agreed to the insertion of a drip. Both Ms OLQ and Ms QBT warned that Mr SNS’s health may be at risk, because of his refusal of medical treatment. Mr HAX confirmed that his brother has been refusing some treatments.

29. Given the concerns that Mr SNS has declined medical treatment, the Tribunal recognised that his guardian might be called upon to make decisions regarding his health care and medical treatment, overriding his objections to medical treatment.

30. During the hearing, Mr HAX, Mr SNS’s newly appointed guardian, and Mr TCV, the alternative guardian, specifically requested that they be given the authority to consent to Mr SNS’s medical and dental treatment, even if Mr SNS objected to that treatment. Ms OLQ and Ms QBT agreed that Mr SNS’s guardian would need this additional authority. At the request of Mr HAX and Mr TCV, the Tribunal gave Mr SNS’s guardian the authority under section 46A of the Guardianship Act to consent to Mr SNS’s medical and dental treatment, even if Mr SNS objects to the treatment proposed.

�   Services

31. Ms KPC prepared a written report in which she outlined the services that Mr SNS receives, including personal care assistance and domestic assistance. However, Ms KPC reported that Mr SNS displays very challenging behaviours, such as hitting and kicking some staff members while they are providing services.

32. The Tribunal decided that Mr SNS’s guardian should have the authority to make decisions about his access to services. In reaching this conclusion, the Tribunal took into account the nature and extent of his disability.

Who should be the guardian?

33. In his application, Mr HAX proposed that the Tribunal should appoint the Public Guardian to be his brother's guardian. However, in a letter to the Tribunal on 23 June 2015, Mr HAX asked the Tribunal to appoint himself, and his daughter, Ms SYN, and his son, Mr TCV, to be Mr SNS’s guardians.

34. Ms SYN did not attend or participate in the hearing. The Tribunal attempted to make contact with Ms SYN during the hearing. Although the Tribunal left a message on Ms SYN's voicemail service, she did not return the Tribunal's call. Accordingly, it was not possible for the Tribunal to assess Ms SYN's suitability for appointment as one of her uncle's guardians.

35. Mr HAX then proposed that he and his son, Mr TCV, be appointed as Mr SNS’s guardian and alternative guardian respectively. Mr TCV indicated that he was prepared to be appointed as his uncle's alternative guardian. Both Mr HAX and Mr TCV said that they would be capable of making difficult decisions for Mr SNS, should that be necessary.

36. Ms QBT and Ms KPC expressed their full support for the proposed appointment of Mr HAX and Mr TCV to be Mr SNS’s private guardian and alternative guardian. A representative from the Office of the Public Guardian also expressed support on behalf of the Public Guardian.

37. The Tribunal took the view that it is clearly appropriate that Mr HAX and Mr TCV be appointed as Mr SNS’s guardian and alternative guardian respectively. Each had indicated his willingness to assume this role. Further, the Tribunal is satisfied that Mr HAX and Mr TCV:

• have personalities generally compatible with the personality of Mr SNS;

• have no undue conflict of interest (particularly financial) with those of Mr SNS; and

• are able and willing to exercise the functions of the order.

38. In reaching its decision, the Tribunal took proper account of the fact that, on 13 February 2001, Mr SNS had appointed his brother and his nephew to be his enduring guardians, and also to be his attorneys under an enduring power of attorney. These appointments demonstrated Mr SNS’s trust in Mr HAX and Mr TCV.

39. In summary, the Tribunal is satisfied that Mr HAX and Mr TCV meet the requirements for a guardian set out in section 17 of the Guardianship Act.

40. For the reasons stated above, the Tribunal appointed Mr HAX as the guardian, and Mr TCV as the alternative guardian, to make decisions on behalf of Mr SNS concerning his accommodation, health care, medical and dental treatment, and services, as set out in the Tribunal's Order.

How long should the order last?

41. The Tribunal decided that this initial appointment of Mr HAX and Mr TCV as the guardian and alternative guardian should be for a period of 12 months.

FORMAL FINDINGS

42. The Tribunal made the following formal findings:

Guardianship

1. Mr SNS is a person who has a disability and, as a consequence, is at least partially incapable of managing his person.

2. The circumstances of the case make it necessary and appropriate in Mr SNS’s interests for a guardian to be appointed for him with the functions referred to in the order, and for the period and subject to the conditions referred to in that order.

3. The guardian and the alternative guardian meet the requirements for appointment as the private guardians of Mr SNS.

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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: 28 July 2015