SZM

[2019] NSWCATGD 25

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

SZM [2019] NSWCATGD 25

Hearing dates:

13 December 2019

Date of orders:

13 December 2019

Decision date:

13 December 2019

Jurisdiction:

Guardianship Division

Before:

M A Oxenham, General Member (Community)

Decision:

The guardianship order for SZM made on 5 December 2018 has been reviewed. The order now is as follows:

 

1. The Public Guardian is appointed as the guardian.

 

2. This is a continuing guardianship order for a period of 12 months from 13 December 2019.

 

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

 

FUNCTION:

 

4. The guardian has the following function:

 

a) Services

 

To make decisions about services to be provided to SZM.

 

CONDITION:

 

5. The condition of this order is:

 

a) Standard Condition

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

Catchwords:

GUARDIANSHIP – review of guardianship order – end-of-term review of guardianship order – whether guardianship order should be renewed – need for a guardianship order – where subject person requires support to access services and activities – NDIS – ongoing need for services function – other previous functions no longer needed – informal supports sufficient – Public Guardian appointed – order renewed and varied.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 4, 14, 14(2)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

003: Review of Guardianship Order

  SZM (the person)
Public Guardian (appointed guardian)

Representation:

Nil

File Number(s):

2018/00299627

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

STATUTORY REVIEW OF GUARDIANSHIP ORDER

Background

1. SZM is a 59-year-old man who lives in group home accommodation in West Sydney operated by a disability services and support organisation. He has a history of schizophrenia. SZM is in contact with his former partner, QAW.

2. SZM has a long term mental illness. He was living alone on his parents’ property in Northwest Sydney when he was admitted to hospital in 2018. During his admission the local health district made an application for guardianship because of concerns about SZM’s ability to live independently.

3. On 5 December 2018, the Tribunal made a guardianship order for SZM, appointing the Public Guardian for 12 months to make decisions about his accommodation, health care, medical and dental treatment and services.

What did the Tribunal have to decide?

4. The guardianship order made for SZM in December 2018 is now due for review. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.

5. The questions to be considered by the Tribunal are:

• Does SZM continue to have a disability which means he needs help to manage his life?

• Should the Tribunal make a further guardianship order and if so, what order should be made?

• Who should be the guardian?

• How long should the order last?

Does SZM continue to have a disability which means he needs help to manage his life?

6. Section 14 of the Guardianship Act 1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is ‘a person in need of a guardian’, because he or she is ‘totally or partially incapable of managing his or her person’ due to a disability.

7. When the previous order was made, the Tribunal found that SZM had a disability due to mental illness and was unable to make important life decisions.

8. SZM told me that he lives in a group home and staff help him with tasks such as cooking and putting bandages on his legs. He was unsure if he needed a guardian but agreed that he needs help managing his day to day life.

9. Ms Z, support worker with the service provider stated that SZM has 24-hour care. He is quite independent in his self-care, but staff assist with domestic tasks and medical appointments. Recently, SZM obtained an opal card to travel on the train, however, staff have recommended that he travel with support as he has been known to get confused when out in the community by himself.

10. There was no dispute amongst those who attended the hearing that SZM continues to be affected by his disabilities.

11. I accepted this evidence and was satisfied that SZM continues to have a disability which means he needs support to manage his life. He is someone for whom the Tribunal could make a further guardianship order.

Should the Tribunal make a further guardianship order and if so, what order should be made?

12. Before making a guardianship order, I must consider the matters outlined in s 14(2) of the Guardianship Act. These matters include the views (if any) of the person; importance of preserving the person's existing family relationships and particular cultural and linguistic environments; and the practicability of services being provided to the person without a guardianship order in place.

13. I am required to weigh these considerations equally, and I can be guided by the principles that are set out in s 4 of the Guardianship Act. These principles include giving the person’s interests paramount consideration, promoting the freedom of action of the person and protecting them from abuse, neglect and exploitation.

14. SZM stated that he was happy living in the group home but would like to live independently in the future. He misses his former home in Northwest Sydney, which was quiet. SZM said he would like to go out more and perhaps work or study.

15. The Public Guardian provided written and oral evidence. In May 2019 the Public Guardian decided to accept a placement for SZM with the group home in West Sydney. SZM lives with three other people and has 24-hour care. The Public Guardian is satisfied that this accommodation is permanent and is meeting SZM’s needs. Ms Z confirmed that SZM is settling well and there are no concerns about his long-term accommodation.

16. Ms Bonnie Zhang, representative of the Public Guardian stated that there have been no major concerns about SZM’s health or medical care. He is being treated with Clozapine for his schizophrenia and attends the Clozapine clinic regularly. He has the ongoing support of the Pathways to Community Living Initiative, and he will soon be discharged from the local mental health team as his condition is stable. The Public Guardian’s submission is that there is no need for a substitute decision-maker in relation to SZM’s health care or medical and dental treatment.

17. Ms Z stated that staff at the group home can assist SZM to go to the doctors and to manage his health care. Ms Z did not foresee any issue with this.

18. Ms Y, mental health nurse confirmed that SZM goes to the Clozapine clinic every month where his overall health is checked by a doctor. He has a six monthly review with his psychiatrist. Ms Y said that in the past SZM did not take good care of his health, particularly his chronic cellulitis, however he was managing much better with the current level of support.

19. The Public Guardian submitted that there was a need for a guardian to be appointed to make decisions about SZM’s services. He has a National Disability Insurance Scheme (NDIS) plan however the plan is currently under-funded. There is a need for ongoing decisions about SZM’s services, and the goal is to increase SZM’s supports so that he can spend more time on activities in the community.

20. Ms X, support coordinator concurred with the Public Guardian’s evidence. She stated that SZM’s NDIS plan only covered his basic day to day care. He is attending a day program but is said to get bored and would prefer more individualised activities such as going to clubs, galleries, art groups and church. Ms X stated that she has had some difficulty communicating with the group home about SZM’s NDIS plan, which has meant that progress has been slow on addressing the shortfall. All parties need to work together to achieve a better outcome for SZM.

21. SZM said he would like to go to TAFE or Uni. He used to work in graphic design and enjoys creative work. SZM would also like to find employment or volunteer work. QAW supported these goals and stated that it would be good for SZM to be more involved in activities outside his home.

22. Ms W, case manager with the Pathways to Community Living Initiative agreed with the Public Guardian’s recommendations. She stated that SZM spent a long time in hospital and has complex support needs. Ms W will continue to support SZM for two years and will visit him monthly to three-monthly depending on his needs.

23. SZM did not have a strong view about guardianship, however, he was not opposed to having a guardian appointed to help achieve his goals. He does not have family contacts so there was no evidence that guardianship is impacting on his family relationships or cultural or linguistic environments. QAW thought that it would be good for the Public Guardian to continue to have a role in ensuring SZM had access to appropriate supports.

24. I accepted the evidence that there were ongoing decisions to be made about SZM’s supports. He does not have adequate funding and the process to achieving more services is likely to take some time. I formed the view that due to SZM’s disabilities and the complexities of negotiating the NDIS, he may be at risk of not receiving all necessary services if an order was not in place.

25. I decided to make a further guardianship order, giving the guardian authority to make decisions about SZM’s services.

Who should be appointed as the guardian?

26. The Public Guardian was appointed as SZM’s guardian on the last occasion. QAW stated that she thought the current arrangement was working well and SZM’s life has improved greatly since the order was made. She was not seeking to be appointed as guardian. As there is no private person available, I reappointed the Public Guardian as SZM’s guardian.

How long should the order last?

27. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made.

28. I decided to make an order for 12 months because this will allow the guardian time to make decisions about a greater range of services to support SZM.

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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: 25 February 2020