SZG

[2022] NSWCATGD 5

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

SZG [2022] NSWCATGD 5

Hearing dates:

14 April 2022

Date of orders:

14 April 2022

Decision date:

14 April 2022

Jurisdiction:

Guardianship Division

Before:

A Britton, Deputy President

Decision:

The guardianship order for SZG made on 16 April 2021 has been reviewed. The order now is as follows:

1. MAG, of [Address removed for publication.], is appointed as the guardian.

2. XKG, of [Address removed for publication.], is appointed as the alternative guardian.

3. This is a continuing guardianship order for a period of 12 months from 14 April 2022.

4. This is a limited guardianship order giving the guardian(s) custody of SZG to the extent necessary to carry out the functions below.

FUNCTIONS: MAG

5. MAG has the following functions:

a) Accommodation

To decide where SZG may reside.

b) Health care

To decide what health care SZG may receive.

c) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where SZG is not capable of giving a valid consent.

d) Services

To make decisions about services to be provided to SZG.

CONDITION:

6. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring SZG to an understanding of the issues and to obtain and consider their views before making significant decisions.

Catchwords:

GUARDIANSHIP – end-of-term review of a guardianship order – whether subject person continues to have disabilities which prevent them from making important life decisions – subject person diagnosed with Bipolar Affective Disorder – need for guardian to make health care, medical treatment, accommodation and services decisions – subject person supports the continuation of the guardianship order – private guardian suitable to continue as guardian – guardianship order renewed.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14,17(1), 25C(c)

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

002: Review of Guardianship Order

SZG (the person)
XKG (alternative guardian)
MAG (appointed guardian, carer)
NSW Public Guardian

Representation:

Nil.

File Number(s):

NCAT 2021/00068141

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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

1. In April 2021 the Guardianship Division of NCAT made a guardianship order in respect of SZG (the 2021 Order). In that order, the Tribunal appointed SZG’s brother, MAG, as guardian and another brother, XKG, as alternative guardian, for SZG. That order gave the guardians authority to make decisions about SZG’s accommodation, health care and services, together with authority to consent to medical and dental treatment on her behalf.

2. In an end-of-term review conducted on 14 April 2022, I decided to renew the 2021 Order, and to reappoint MAG and XKG as SZG’s guardian and alternate guardian, respectively, for a period of 12 months. These are the reasons for that decision.

Powers on review of the 2021 Order

3. On review the Tribunal may renew, or renew and vary, the 2021 Order, or determine that it is to lapse: Guardianship Act 1987 (NSW), s 25C(c). Before considering which of these orders is appropriate, I must decide whether SZG remains “a person in need of a guardian”: Guardianship Act, s 14.

Is SZG a person in need of a guardian?

4. 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”: Guardianship Act, s 3(1). A person with a disability is defined to include a person who is physically and/or psychologically disabled and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: Guardianship Act, s 3(2).

5. In its reasons for making the 2021 Order, the Tribunal summarised at [13]-[19], the medical evidence about SZG’s mental and physical health conditions:

1. SZG had been diagnosed with a “fluctuating but severe” mental illness;

2. Ten years ago SZG had been diagnosed with “Bipolar Affective Disorder Type 1”;

3. in the opinion of a psychiatric registrar, of a public hospital, SZG did not have capacity to make decisions about the level of support she might need to live within the community, and, had limited insight with regard to the treatment needs of her Bipolar Affective Disorder.

6. In these proceedings, SZG agreed with the proposition that she had a fluctuating mental health condition, which from time-to-time made her unable to make reasoned and rational decisions.

7. In a report prepared for these proceedings, registered nurse of a community mental health service Ms Z, summarised SZG’s medical history over the past 12 months. Ms Z reported:

1. on 21 April 2021, shortly after the guardianship hearing in which the 2021 Order was made, SZG was discharged from a mental health facility after a three-month admission;

2. a week later, SZG was re-admitted for a period of one month and nine days. On that admission, SZG presented with “acute behavioural disturbance with mania and psychotic features”;

3. on 10 July 2021, SZG was re-admitted to hospital for 30 days;

4. on 1 November 2021, SZG was admitted to hospital with various conditions, including speech difficulties and sleep disturbances;

5. on 9 February 2022 SZG was admitted to a mental health unit. During that admission SZG fell and fractured her leg. She underwent surgery and is currently in rehabilitation.

8. SZG is of the view that on account of her condition, she is a person in need of a guardian and is unable to make informed decisions from time-to-time or at least without the assistance of her brother, MAG.

9. The available material indicates that:

1. as a consequence of her Bipolar Affective Disorder, SZG requires support to live in the community to undertake several major life activities. It follows that SZG is a “person with a disability within the meaning of s 3(2) of the Guardianship Act;

2. because of her disability, SZG is now partially incapable of managing her person, or, at least on those occasions where her condition is severe.

10. It follows that SZG is a person in need of a guardian and the power to renew the 2021 Order can be exercised.

Should the 2021 Order be renewed, renewed and varied, or allow to lapse?

11. In deciding whether to renew, renew and vary, or to allow the 2021 Order to lapse, I adopt the approach consistently taken by NCAT and one of its predecessor tribunals, the Guardianship Tribunal of NSW, that in conducting an end-of-term review of a guardianship order, the Tribunal must:

1. consider the matters listed in s 14 of the Guardianship Act;

2. observe the “general principles” listed in s 4 of that Act.

Views of SZG

12. SZG stated in these proceedings that the guardianship order should be renewed. She stated that she has, and in the future, is likely to from time-to-time need her brother’s advice and assistance in making decisions.

Views of the guardian

13. MAG stated that it is necessary and appropriate for the 2021 Order to continue. He stated that it is likely that over the next 12 months, a number of significant decisions will need to be made relating to SZG. In the immediate future, a decision will need to be made about SZG’s accommodation. Her ability to continue to live in her current place of residence, a two-story house will depend upon the extent of her recovery from her leg fracture.

14. In addition, it is likely that further decisions will need to be made about SZG’s health care, including dental treatment. Further, decisions will need to be made about what supports will need to be put in place to enable SZG to return to live within the community and, if possible, in her own home.

15. According to MAG, it has assisted him dealing with agencies, such as the National Disability Insurance Agency, which make decisions which impact on SZG, to be able to point to the authority conferred by the 2021 Order. He says that at all times he endeavours to consult with SZG about decisions and they generally but not always reach agreement.

The importance of preserving SZG’s existing family relationships/the importance of preserving SZG’s particular cultural and linguistic environments

16. Neither factor appears to impact one way or the other on the question of whether a further guardianship order should be made.

The practicalities and services being provided to SZG without the need for making such an order

17. SZG’s medical history over the last 12 months, in particular, the treatment involved with the fracture of her leg, reveals that SZG currently receives and is likely to continue to require significant external services.

18. While it puts it too high to suggest that it would be impractical for services to be provided to SZG without a guardianship order, nonetheless I accept MAG’s claim that from a practical point of view, holding a guardianship order will assist him to satisfy relevant authorities that he has power to make decisions on behalf of SZG. To that extent that favours the making of a guardianship order.

Findings and conclusions

19. The task of deciding whether to renew, renew and vary, or to allow the 2021 Order to lapse requires that I balance a number of potentially competing considerations. On the one hand, I must observe the principle that SZG be protected from neglect, abuse, and exploitation. On the other hand, I must restrict her freedom of decision making and action as little as possible. At all times, the paramount consideration is SZG’s welfare and interests.

20. Weighing in favour of a guardianship order is the likelihood that SZG will need to make a number of significant decisions in the foreseeable future about matters relating to her accommodation and health care. In my view MAG will be better able to make and support SZG in making decisions, if a guardianship order remains in place. Critically, SZG supports the continuation of the guardianship order. I have decided the discretion to renew the 2021 Order should be exercised.

Term of order

21. At the hearing I raised with the parties whether the order should be renewed for more than 12 months. SZG stated that her preference was for the order to be made for 12 months only.

22. There is no compelling reason to make an order for more than 12 months. Making a 12-month order accords with SZG’s preference. Therefore, I decided to make an order for that period.

Functions

23. There was no material to suggest that any of the current functions given in the 2021 Order were no longer required, or that additional functions were required. Therefore, I decided to give the guardians the same functions as given under the 2021 Order.

Who should be appointed as SZG’s guardian?

24. MAG has been acting as SZG’s guardian for the past 12 months. He is the only person to have nominated to act in that role. Prior to the making of the 2021 Order, MAG held an enduring guardianship appointment. The making of the guardianship order operates to suspend that appointment.

25. MAG and XKG cannot be appointed as SZG’s guardian unless I am satisfied of the three matters listed in s 17(1) of the Guardianship Act, namely:

17 Guardians

…

(a)   the personality of the proposed guardian is generally compatible with that of the person under guardianship,

(b)   there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and

(c)   the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.

26. In 2021, the Tribunal found that MAG satisfied each of these criteria.

27. SZG supports her brother’s reappointment.

28. Ms Z recommended MAG’s reappointment. In her report, Ms Z stated that having MAG as SZG’s guardian has been beneficial, especially given her history of multiple hospital admissions over the past 12 months. In Ms Z’s view, given SZG’s history of becoming suddenly unwell for extended periods, the absence of a guardian would be detrimental as crucial decisions around accommodation and support would not be able to be made, or be delayed.

29. The appointed guardianship statement prepared by MAG for these proceedings, indicates that he has been diligent in the discharge of his duties as guardian. Significantly, his self-report that he consults with SZG in making decisions on her behalf, was confirmed by SZG in these proceedings.

30. There is no evidence to suggest that MAG does not meet the criteria in s 17(1) of the Guardianship Act. For those reasons I have decided to reappoint him as guardian.

Alternate guardian

31. According to MAG, XKG has been unwell but remains willing and able to act as the alternate guardian. There is no evidence to suggest that XKG does not satisfy the criteria in s 17(1) of the Guardianship Act. SZG supports his reappointment. For these reasons I have decided to reappoint him as the alternate guardian.

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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: 15 July 2022