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

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

TOU is 49 years of age. She resides in a Nexus Inc. group home in Hobart.
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.
TOU has an administration order, which was made on 20^th April 2017 and remains in effect to 19^th April 2019.

The Hearing

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

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.
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?

Dr Martin Neuberger, General Practitioner provided a Health Care Professional Report to the Board concerning TOU dated the 3^rdJuly 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.
The medical evidence was unchallenged at the hearing. The Board is satisfied that TOU is a person with a disability…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading TOU (Guardianship)

Details

AGLC: TOU (Guardianship) [2018] TASGAB 1
Case: [2018] TASGAB 1
Decision Date: 19 April 2019

CaseChat Overview and Summary

The matter before the tribunal involved the appointment of a guardian for TOU, an individual requiring assistance in making decisions due to cognitive impairments. The dispute centred around the scope of the guardianship powers, particularly concerning the signing of service agreements under the National Disability Insurance Scheme (NDIS). The case was heard by the Guardianship Board, an authoritative body under the Guardianship and Administration Act 2000 (Vic). The tribunal was tasked with determining whether the Public Guardian should be appointed as TOU's guardian and, if so, what specific powers and duties should be assigned to the guardian.

The legal issues before the tribunal were twofold. Firstly, whether the Public Guardian should be appointed as TOU’s guardian, given TOU's cognitive impairments and the need for assistance in decision-making. Secondly, the tribunal had to delineate the specific powers and duties of the guardian, particularly in relation to the signing of service agreements under the NDIS and advocating for TOU's interests in NDIS plan development, implementation, and review.

In rendering its decision, the tribunal acknowledged TOU's cognitive impairments and the necessity for a guardian to assist in making decisions on their behalf. The tribunal emphasised that the guardianship should be tailored to meet TOU's specific needs, ensuring that the guardian's powers and duties are proportionate to those needs. In relation to the NDIS, the tribunal decided that the guardian should have the authority to determine and consent to the provision of services TOU should have access to, as well as advocate on their behalf during NDIS plan development, implementation, and review processes. The tribunal concluded that these powers were essential for ensuring TOU's interests were adequately represented and safeguarded. The order appointing the Public Guardian as TOU's guardian, with the specified powers and duties, was made effective until 11 January 2019.

Orders

Orders of the court

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:

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

2. 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 11th January 2019.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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