TOU (Guardianship)

[2018] TASGAB 1

GUARDIANSHIP AND ADMINISRATION BOARD
HOBART

TOU – Application for appointment of a guardian

TOU (Guardianship) [2018] TASGAB 1

REASONS FOR DECISION

Before: Rowena Holder

Date of hearing: 12 January 2018

Guardianship – NDIS – signing of service agreements

Guardianship and Administration Act 1995

National Disability Insurance Scheme Act 2013 (Cth)

What the Board decided

1. The Guardianship and Administration Board (the Board) appointed the Public Guardian as guardian for TOU with the authority to determine and provide consent to the provision of services which the represented person should have access; and advocating on TOU’s behalf in respect of any NDIS plan development, plan implementation and/or plan review.

Background

1. TOU is 49 years of age. She resides in a Nexus Inc. group home in Hobart.

2. With the implementation of the National Disability Insurance Scheme (NDIS) and TOU having no family or informal supports, the Manager of Client Support at Nexus Inc. applied for a guardianship order. The Board received the Application on
   14^th December 2017.

3. TOU has an administration order, which was made on 20^th April 2017 and remains in effect to 19^th April 2019.

The Hearing

1. On 12^th January 2018 the Board conducted a hearing to determine the guardianship application for TOU.

2. The following persons attended the hearing:

   ·Ms Alison Hodges, Applicant

   ·Ms Kathleen Williams, House Manager at Nexus

   ·Ms Nicky Targett from the Office of the Public Guardian (OPG)

   ·Mr Mathew Gardener from the Public Trustee

3. The Board had the following documents before it:

   ·Application for Guardianship

   ·Health Care Professional Report from Dr Neuberger

   ·Nexus Client Profile

   ·Administration Order made by the Board dated 20^th April 2016

The Guardianship & Administration Act 1995

1. When the Board assesses an application for the appointment of a guardian it needs to be satisfied of the matters in sections 20 of the Guardianship and Administration Act 1995 (the Act), that the proposed represented person:

   (a)is a person with a disability, and

   (b)is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to her person or circumstances,

   (c)is in need of a guardian.

2. The Board must also balance the principles in section 6 of the Act, which include the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; the best interests of and the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.

Is TOU a person with a disability?

1. Dr Martin Neuberger, General Practitioner provided a Health Care Professional Report to the Board concerning TOU dated the 3^rd July 2017.   Dr Neuberger reported that TOU has a diagnosis of intellectual disability, existing since birth.  The Applicant gave evidence that TOU has a severe intellectual disability, autism, pica disorder, bipolar disorder and osteoporosis and osteoarthritis.

2. The medical evidence was unchallenged at the hearing. The Board is satisfied that TOU is a person with a disability within the meaning of the Act.

Is TOU incapable by reason of her disability of making reasonable judgements in respect of matters relating to her person?

1. Dr Neuberger indicated that TOU’s disability results in her being incapable of making decisions about her person or circumstances. The client profile from Nexus indicated that TOU has very limited communication skills (she is nonverbal and does not point) and is unable to communicate her decisions in any comprehensive or consistent way.  The Board is satisfied that TOU is incapable of making decision about her person or circumstances.

Is TOU in need of a guardian?

1. The Board received evidence at the hearing that TOU was a participant in the NDIS Scheme.  Nexus Inc. had submitted an unsigned access request form to the National Disability Insurance Agency (NDIA) earlier in the year on behalf of TOU. The Applicant indicated TOU does not have family or any other person in her life who was able to submit the access request form or support her though the NDIS planning process. The unsigned access request was accepted by the NDIA.

2. Staff at Nexus Inc. were interviewed by a NDIA representative as part of the process of preparing a plan for TOU.  The Applicant gave evidence that TOU would not be able to engage with or express her wishes to an advocate and hence no advocate was involved. A NDIS plan was completed and dated 29^th September 2017.  The plan is for 12 months.

3. The National Disability Insurance Scheme Act 2013 (Cth) (the ‘NDIS Act’) requires that the CEO of the NDIA must facilitate the preparation of a plan in accordance with the NDIS Rules for each participant in the NDIS (section 32 NDIS Act). The plan must include a statement of the participant’s goals and aspirations and a statement of participant supports (section 33 NDIS Act). Section 31 contains the principles relating to plans, which include (amongst others):

   ·The plan be individualised and directed by the participant

   ·Where relevant, consider the role of family, carers, and other significant persons

   ·Be underpinned by the right of the participant to exercise choice and control

4. TOU’s disability clearly prevents her from being able to make major decisions such as those involved in NDIS planning.  Further, TOU has no person to support her or advocate for her through the planning process and she has no way in making her wishes known.  TOU has not had the benefit of a guardian advocating on her behalf in the development of the NDIS plan and its implementation and providing appropriate support. 

5. The Board noted the evidence given by the Applicant, that Nexus Inc. had now been advised by the NDIA that a guardian should be involved at the pre planning stage when individuals who lack decision making capacity are involved and who are unable to express their wishes and exercise “choice and control” through family, advocacy or other informal support.

6. It was submitted by the Applicant that the “NDIS plan was basic” and no changes had been made to TOU’s existing supports at this point.  The Board heard that since the completion of the plan a co-ordinator of supports has been appointed

7. The Applicant submitted that TOU now requires a substitute decision maker to sign service agreements so that service providers are funded for services they provide to TOU.

8. The Applicant also indicated that an internal review of the plan had been lodged on the basis that insufficient funding had been allocated for a multi-faceted behavioural assessment which was sought around a restrictive practice, namely the wearing of a body suit which has been necessary to prevent adverse health issues associated with coprophagia.  A quote had been obtained of approximately $20,000 for the assessment. The Applicant reported that the sum of approximately $5000 has been allocated in the plan. It is understood that the “review” is an application for an internal review of a decision. The Applicant submitted that she saw benefit of the involvement of the Public Guardian in the internal review, advocating for further funds needed for the assessment.

9. The Applicant also gave evidence that a review of the plan would occur in approximately July 2018 and a new plan would be completed before the existing plan expired. The Applicant submitted it would be of benefit to have the Public Guardian advocating for and representing TOU in the second NDIS planning process. 

10. Mr Gardener of the Public Trustee acknowledged there was a need for the appointment of a substitute decision maker. Ms Targett of the Office of the Public Guardian indicated that it was the Office of the Public Guardian’s perspective that the “co-ordinator of supports is the person who would continually be involved in working out what the individual needs by way of support and would have a much better idea what those supports are than the guardian would ever have.”  Further into the hearing, Ms Targett acknowledged that “sounds as though there is a role of advocacy on behalf of every client who doesn’t have the capacity to direct their own support or decide what support they need. I see it as another layer of bureaucracy. It seems to be an issue with the system as opposed to this particular request.” Ms Target believed Advocacy services or a guardian could assist TOU.

11. On the evidence before the Board I am satisfied there is a need for a guardian to advocate in the internal review the NDIS plan and to consider whether the plan meets the needs of TOU.  There may be areas of support that have not been clearly considered in the current plan that will need to be considered in the second and future plans. There needs to be the selection of services that are the subject of the funding and an independent mind needs to be brought to this process. I am satisfied that these are decisions that TOU cannot make herself or with advocacy support, due to her impaired decision making capacity.  TOU has complex needs and it is very important that she have someone to advocate for her and make decisions throughout this process.

12. I am also satisfied that a substitute decision maker is required to sign the service agreements.  In relation to service agreements the Board notes that individual services have their own service agreement, rather than there being a generic one. The service agreements appear to have legal, financial and personal implications. The issue arises then as to whether a guardian or administrator is best positioned to sign a service agreement. The Board notes there are decisions in other guardianship jurisdictions in Australia which indicate either are being appointed.  TOU has both the Public Trustee as her administrator and the Public Guardian now as her guardian. The service agreement should be considered by both as to who is best placed to sign it, based on the specific terms of the Agreement(s). If consensus cannot be reached, then advice and direction can be sought from the Board.

13. Finally the Board heard evidence from the Applicant as to the further need for consent to medical treatment. After some discussion it was determined that this would best be dealt with by a separate application, given the Board has previously given consent to medical treatment and that consent is still ongoing.

Conclusion

After hearing an application for a guardianship order in respect of TOU the Board was satisfied that the represented person

·           is a person with a disability, and

·           is unable by reason of the disability to make reasonable judgements in respect                 of his person and circumstances; and

·           is in need of a limited guardian;

THE BOARD ORDERS

1. That the Public Guardian be appointed as TOU’s guardian.

2. That the powers and duties of the guardian are limited to:

   i.determine and provide consent to the provision of services which the represented person should have access;

   ii.advocating on TOU’s behalf in respect of any NDIS plan development, plan implementation and/or plan review.        

3. That the order remains in effect to the 11^th January 2019.

Rowena Holder

PRESIDENT