STS

[2016] NSWCATGD 18

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	STS [2016] NSWCATGD 18
Hearing dates:	04 March 2016
Date of orders:	04 March 2016
Decision date:	04 March 2016
Jurisdiction:	Guardianship Division
Before:	A Britton, Principal Member G Jamieson, Senior Member (Professional) L Stewart, General Member (Community)
Decision:	Guardianship order made for 12 months; Public Guardian appointed with accommodation, advocacy and services functions.  Financial management order made for 24 months; estate committed to the NSW Trustee and Guardian (Centrelink payments excluded).
Catchwords:	GUARDIANSHIP – application for a guardianship order – subject person soon to leave care of Minister for Family and Community Services – consideration of factors in ss 4 and 14 of the Guardianship Act 1987 (NSW)   FINANCIAL MANAGEMENT – subject person’s capacity to manage own affairs – interplay of disability, age and life experience in assessment of capacity – risk of financial exploitation with pending compensation payment made
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14(1), 14(2), 17(1), 18(1), , 25E(1), 25G Victims Rights and Support Act 2013 (NSW)
Category:	Principal judgment
Parties:	Ms STV (subject person) Ms NGL (applicant) The NSW Public Guardian The NSW Trustee and Guardian
Representation:	Separate Representation – J Kwan
File Number(s):	61492
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

1. In a couple of weeks Ms STV will turn 18 years of age. She is currently under the care of the Minister for Family and Community Services (the Minister) and lives in a group home managed by a disability service provider. She has regular contact with her mother, Mrs DBS.

2. In December 2015, Ms NGL, manager casework, NSW Family and Community Services, made an application to the Guardianship Division of the New South Wales Civil and Administrative Tribunal for guardianship and financial management orders in respect of Ms STV (the Application). In Ms NGL’s opinion, Ms STV lacks the capacity to make significant lifestyle and financial decisions on her own behalf. The trigger for the Application was apparently Ms NGL’s concern that the pending payment to Ms STV of a significant lump sum compensation payment under the Victims Rights and Support Act 2013 (NSW), make her vulnerable to financial exploitation. In addition, Ms NGL was concerned about the uncertainty surrounding the arrangements for services and support available to Ms STV when she turns 18 and is no longer in the care of the Minister.

3. After hearing the Application in West Sydney, NSW, on 4 March 2016, we made orders under the Guardianship Act 1987 (NSW) (the Act): (i) to make a financial management order (FMO) in respect of Ms STV, to be reviewed in 24 months and to exclude from that order Ms STV’s Newstart Allowance, and (ii) to make a guardianship order in respect of Ms STV and to appoint the Public Guardian as guardian for Ms STV to make decisions on her behalf in relation to accommodation, advocacy, and services for a period of 12 months.

4. These are the reasons for our decision.

GUARDIANSHIP APPLICATION

Is Ms STV a “person in need of a guardian”?

5. The power to make a guardianship order can only be exercised if we are satisfied that Ms STV is “a person in need of a guardian” (s 14(1) of the Act). 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 defined to include a person who is intellectually and/or psychologically disabled or of advanced age and by virtue of that fact 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).

6. In 2015, Ms STV was enrolled at a public school in a support class for children with mild intellectual disabilities. In a report dated 24 April 2015, the public school counsellor, Ms EMS, wrote that a recent assessment using Vineland II, an assessment tool used to measure a person’s personal and social skills, revealed that Ms STV’s “overall adaptive functioning” was in the low range (equal to, or less than, one per cent of the population in her age group). According to Ms EMS, Ms STV’s behaviour was measured to be in the low-range across the domains of communication, daily living skills and socialisation.

7. Two months later, Ms STV was assessed by clinical psychologist, Ms Z. In a report dated 16 June 2015, Ms Z wrote that testing using the Wechsler Adult Intelligence Scale, fourth edition (WAIS-IV), an assessment tool designed to measure intelligence and cognitive ability in adults and older adolescents, revealed that Ms STV’s overall score was in “the borderline to extremely low” range. According to Ms Z, these results indicate that Ms STV “needs support around her intellectual disabilities”.

8. In a report dated 23 May 2015, Ms Y, a senior clinical with the disability service provider, wrote that Ms STV has a borderline intellectual disability and, in addition, a history of displaying “serious maladaptive behaviours of a physically aggressive and/or sexual nature”, said to relate to a diagnosis of post-traumatic stress disorder. According to Ms Y, the available evidence indicates that in the early years of her life, Ms STV experienced “little in the way of parental guidance and support” and also, has been exposed to “some level of inappropriate sexual conduct of an undefined nature”.

9. According to Ms Y, on testing using the Adaptive Behaviour Assessment System – Second Edition (ABAS-II) – a test used to assess an individual’s adaptive skills, Ms STV scored 60, placing her at equal to, or less than, 0.4 percent of people in her age group.

10. Ms STV’s participation at the hearing, in our opinion was somewhat at odds with the results on testing summarised above which indicate she has a mild intellectual disability. Ms STV was able to respond to all questions asked throughout the course of the hearing and to express herself clearly. She demonstrated an understanding of matters of some complexity and abstract concepts. While care must be taken in placing undue weight on these observations giving the limited opportunity we had to observe Ms STV, they suggest that her poor results on testing may be attributable, in part at least, to the lack of support and formal education.

11. Despite these misgivings, we are nonetheless satisfied that Ms STV has a mild intellectual disability, and, as a result, is currently restricted in at least one major life activity to such an extent that she requires supervision. We find that on account of her disability Ms STV is partially incapable of managing her person and therefore satisfies the statutory definition of “a person in need of a guardian”.

Should a guardianship order be made?

12. In considering whether or not to make a guardianship order s 14(2) of the Act instructs that we shall have regard to:

(a)    the views (if any) of:

(i)    the person, and

(ii)    the person’s spouse, if any, if the relationship between the person and the spouse is close and continuing, and

(iii)    the person, if any, who has care of the person,

(b)    the importance of preserving the person’s existing family relationships,

(c)    the importance of preserving the person’s particular cultural and linguistic environments, and

(d)    the practicability of services being provided to the person without the need for the making of such an order.

In addition, in exercising the power conferred by s 14 of the Act, we must observe the statement of general principles listed in s 4 of the Act.

Background

13. At the time of the hearing, Ms STV was living in a group home managed by a disability service provider. According to a case worker from the disability service provider, Ms STV was receiving intensive support to assist her to obtain living skills, such as using public transport and being able to budget. He stated that while Ms STV has made “significant progress”, she requires intensive on-going support and training to reinforce newly acquired living skills and to develop additional ones. In his opinion, Ms STV also needs assistance to obtain health services and sex education.

Views of Ms STV

14. At hearing, Ms STV stated that she acknowledged that when she turns 18 years, she will probably continue to need help to make decisions about various matters, including accommodation. She said she was happy for decisions to be made on her behalf.

Views of the applicant

15. According to Ms NGL, there is considerable uncertainty surrounding the support and assistance Ms STV will receive once she turns 18 and is no longer under the care of the Minister. According to Ms NGL, Ageing, Disability and Home Care (ADHC), part of the Department of Family and Community Services, have accepted the referral for “after care”, including accommodation for Ms STV. She stated however that the negotiations with the disability service provider to put in place a transitional plan for Ms STV, have recently reached an impasse, and no firm plans are now in place. In her opinion, there is an urgent need for a guardian to be appointed as to leave intensive residential support and make decisions on her own behalf would be a “big jump” for Ms STV. In Ms NGL’s opinion, Ms STV lacks the ability to navigate the myriad of agencies and services providers who may be able to provide her with assistance and support.

Views of the separate representative

16. Ms STV’s separate representative is of the opinion that for the foreseeable future Ms STV would benefit from being the subject of a guardianship order. In her opinion, the period of transition following being in the care of the Minister is likely to be fraught with uncertainty and Ms STV will require significant support and services and, in addition, a person to advocate on her behalf. She urged us to give the guardian an advocacy function.

Views of Ms STV’s mother

17. Ms STV’s mother, Mrs DBS, stated that while she agreed her daughter was making significant progress, in her opinion she currently lacked the ability to make sound decisions of significance. She supported the making of a guardianship order.

Consideration

18. There is considerable uncertainty surrounding the support and assistance likely to be available to Ms STV, once she leaves the care of the Minister. Despite their apparent best endeavours, the many experienced and senior managers involved in supporting Ms STV, are as yet unable to finalise arrangements for the accommodation and services she will require when she turns 18, in a few weeks’ time. It almost goes without saying that if this group are struggling to put in place these arrangements, Ms STV is unlikely to be able to do so. A combination of youth, limited living skills, and an intellectual disability suggests that a guardianship order may be necessary to protect Ms STV’s welfare and interests.

19. In deciding whether to make a guardianship order, in addition to the factors listed in s 14(2) of the Act, we must have regard to the s 4 statement of principles. Among other things, this requires that in deciding whether to make a guardianship order, we must endeavour to restrict Ms STV’s freedom of decision making and freedom of action as little as possible, as far as possible enable her to be self-reliant in matters relating to her personal, domestic and financial affairs, and, at the same time, protect her from neglect, abuse and exploitation. The paramount consideration at all times is Ms STV’s welfare and interests.

20. While a guardianship order will inevitably restrict Ms STV’s freedom of decision making and action, we have decided nonetheless that the balance of considerations weigh in favour of making a guardianship order, especially given the difficulties Ms STV is likely to confront in the immediate future in securing appropriate accommodation and services. In reaching that view, we also note that Ms STV does not oppose the making of a guardianship order.

21. An initial continuing guardianship order can generally only be made for a period not exceeding 12 months (s 18(1) of the Act). It may be that if appropriate support and assistance can be secured and Ms STV is able to build on the progress she has made in acquiring living skills, a guardianship order beyond 12 months will not be required. That issue will be decided on review of these orders in 12 months having regard to the material that is then available.

What functions should the guardian(s) be given?

22. We have decided to give the guardian an accommodation, services and advocacy function. The latter in our opinion is necessary given the anticipated difficulties that may arise in securing services and accommodation for Ms STV.

Who should be appointed as Ms STV’s guardian?

23. Ms STV nominated her mother as the person she would like to make decisions on her behalf. In the alternative, she nominated one of the carers in the group home where she now resides.

24. Mrs DBS declined to accept that appointment. In her opinion she lacked the necessary skills to act as advocate, and to identify and secure accommodation and services, for her daughter.

25. The Tribunal is unable to appoint the care worker nominated by Ms STV because first, we have no information on which we could be satisfied that she is willing and able to take on that role and, in addition, being a paid carer gives rise to a potential conflict of interest between the carer and Ms STV. (see s 17(1) of the Act).

26. In the absence of any suitable person who is willing and able to take on the role of guardian, we must appoint the Public Guardian to act as Ms STV’s guardian.

APPLICATION FOR FINANCIAL MANAGEMENT ORDER

27. Section 25G of the Act provides that we may make a financial management order in respect of Ms STV only if we have considered her capability to manage her own affairs and are satisfied, to the relevant civil standard, of three matters:

• First, that Ms STV is not capable of managing her financial affairs;

• Second, that there is a need for a person to manage those affairs on behalf of Ms STV;

• Third, that it is in Ms STV’s best interests that the order be made.

28. The trigger for making the FMO application was Ms NGL’s concern that Ms STV may be vulnerable to financial exploitation by other people, especially given that she is about to receive a significant compensation payment. In the Application she referred to allegations of Ms STV being subject to financial exploitation by some members of her family.

29. For the past four months, Ms STV has been receiving the Newstart Allowance of $538 per fortnight. She has not been required to pay rent or food from that allowance. According to Ms STV, she currently has about $400 in a savings account and is learning to manage her money. She stated that among other things, she has purchased an iPhone, a pair of shoes, and tickets to the football using her NSA.

30. When questioned about the allegation that she has a tendency to give money to family members on request, Ms STV states that from time to time she lends money to her 19-year old sister, who currently owes her $67. She states that when she lends money she records the amount in her phone any money lent to people. She claims she understands that she needs “to stand up for herself” and to protect her money.

31. When questioned about what she would do with the compensation payment she is about to receive, Ms STV replied she might buy a car and go on a holiday. On questioning she was unable to give an estimate of the likely purchase and running costs of a car. She stated she objected to being subject to a FMO and wanted the opportunity to manage her own money.

32. According to the case worker from the disability service provider, Ms STV has only recently received assistance to develop financial management skills. In his opinion, she needs further support to develop and refine those skills. He stated that while she is learning how to protect her money, further work was needed.

33. Ms STV’s separate representative and Ms STV’s mother each supported the making of a FMO. Mrs DBS was of the opinion that at this stage her daughter would be unable to manage the pending compensation settlement.

34. The consensus of opinion is that with support, Ms STV could probably manage her NSA and that it was in her interests that she be able to do so.

35. Mrs DBS declined to be considered for appointment as her daughter’s financial manager and supported the appointment of an independent person.

Consideration

36. As a consequence of her age, disability, and limited life experience, we find that Ms STV is presently incapable of managing her financial affairs, especially given that she is about to receive a significant compensation settlement.

37. On the available evidence, we could not be satisfied of each of the allegations outlined in the Application. Nonetheless, we accept, given Ms STV’s current circumstances, she may be at risk of financial exploitation, especially in relation to the compensation settlement.

38. The preconditions to the making of a FMO are satisfied and we have decided it is appropriate in the circumstances of this case to exercise that power. However, we have decided to exclude from that order any Centrelink benefits, under s 25E(1) of the Act, Ms STV may receive. In reaching that decision we are mindful that this may put Ms STV’s finances or at least her Centrelink payments at risk. However, that risk must be balanced against the instruction contained in the statement of principles to restrict Ms STV’s freedom of decision making and freedom of action as little as possible and enable her as far as possible to be self-reliant in matters relating to her personal, domestic and financial affairs. While finely balanced, we have decided that the weight of considerations favour Ms STV being given a level of financial autonomy and independence. Without that opportunity there is a risk that she will not achieve her stated desire of financial independence.

39. We have decided, notwithstanding Ms STV’s preference for her mother or the caseworker to be appointed to manage her estate, that it is more appropriate that an independent person be appointed to that role. Accordingly, we have decided to commit the management of her estate (excluding Centrelink payments) to the NSW Trustee and Guardian.

40. We have decided that the order should be reviewed in two years as it may be that by this time, Ms STV will be able to demonstrate that she is capable of managing her finances and there is no reasonable basis for Ms NGL’s concern that she is susceptible to financial exploitation by family members.

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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: 22 September 2016