UMD

[2015] NSWCATGD 35

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	UMD [2015] NSWCATGD 35
Hearing dates:	6 May 2015
Date of orders:	06 May 2015
Decision date:	06 May 2015
Jurisdiction:	Guardianship Division
Before:	S Taylor, Senior Member (Professional)
Decision:	Guardianship order lapsed.
Catchwords:	GUARDIANSHIP – where financial management order in place – need for advocacy in relation to additional services to be provided – evidence that needs could be met without an order – no need for order to be continued – order lapsed on review
Legislation Cited:	Guardianship Act 1987 (NSW)
Category:	Principal judgment
Parties:	Mr UMD (the person under guardianship) Mrs LCM (daughter and guardian of Mr UMD) The Public Guardian
Representation:	Nil
File Number(s):	50744
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

What the Tribunal decided

1. The Tribunal reviewed the previous guardianship order concerning Mr UMD made on 9 May 2014 and decided the order should lapse.

Background

2. Mr UMD is an 81-year old widowed man who had a stroke in June 2012. He has been a permanent resident at an aged care facility in Regional NSW since September 2014, having previously resided in his own home at Regional NSW. Mr UMD's wife, Mrs KED, was also a resident of the aged care facility, but passed away in 2014. Mr UMD's daughter, Mrs LCM, resides at Regional NSW, and he also has a son, Mr ESD, and another daughter, Ms QDD, who is currently in Tasmania. There is a history of significant conflict between Mr UMD's children.

3. On 23 August 2012 the Tribunal appointed the NSW Trustee and Guardian as Mr UMD's financial manager, and the Public Guardian as his guardian for a period of twelve months, with the functions of accommodation, health care, services and access. The guardianship order was reviewed in August 2013 and allowed to lapse.

4. In March 2014 a further application for guardianship was received from Mr UMD's case manager at a Community Care Centre. On 9 May 2014 the Tribunal appointed the Public Guardian as Mr UMD's joint guardian to make decisions about his accommodation, and Mrs LCM with the health care, services and medical and dental consent functions. The matter before this Tribunal was the statutory review at the end of the term of that guardianship order.

The hearing

5. At the end of these Reasons for Decision are lists of the parties to the review and witnesses who attended the hearing. [appendix removed for publication]

What did the Tribunal have to decide?

6. The questions which have to be decided by the Tribunal are

• Is Mr UMD someone for whom the Tribunal could make an order because he continues to have a disability which prevents him from being able to make important life decisions?

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

Is Mr UMD someone for whom the Tribunal could make a further order because he continues to have a disability which prevents him from being able to make important life decisions?

7. When the previous order was made, the Tribunal found that Mr UMD had cognitive impairment as a result of a stroke, and was unable to make important life decisions. There is no new evidence before the Tribunal in relation to this issue.

8. The Tribunal is satisfied that Mr UMD continues to have a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a further guardianship order.

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

The views of the representative from the Office of the Public Guardian

9. The representative indicated, in a report to the Tribunal, that Mr UMD made his own decision to move to the aged care facility, with the support of his family and the Public Guardian. He has at times expressed the wish to leave, however he has made no attempt to do so, and is in a secure facility. The representative stated that there are no imminent accommodation decisions to be made for Mr UMD, and recommended that the order be allowed to lapse.

The views of Mr UMD

10. Mr UMD told the Tribunal that he is going well at the aged care facility and is happy to remain there. He goes out on bus trips, and also with Mrs LCM. He accepts that he was unable to continue living at home, and he made the decision to move. He is happy for Mrs LCM to continue to make decisions for him.

The views of Mrs LCM, daughter and guardian

11. Mrs LCM said that Mr UMD was losing weight and wandering whilst at home, however his condition has significantly improved since he moved to the aged care facility, and he has put on weight, and can make many decisions for himself. The care at the facility is excellent, and there are no plans for Mr UMD to move. Mrs LCM was previously concerned that he may be removed from the facility by other family members, however her brother and sister are now both in Tasmania, and she is no longer concerned about this.

12. Mrs LCM said that she would like Mr UMD to be involved in more activities, but the NSW Trustee and Guardian has not been willing to provide extra funds for anything other than an art therapy program, which has benefitted Mr UMD enormously. Mr UMD is intelligent and needs more stimulation than he is getting at the facility. Mrs LCM would like the NSW Trustee and Guardian to provide funds for him to have a 1:1 carer a few times a week, so that he can go out more. She would also like to trial him going on a cruise, and if this is successful, he may be able to take some longer trips. Mr UMD has substantial assets, which should be spent to improve his quality of life. Mrs LCM said she would like to remain appointed as Mr UMD's guardian, so that she has the authority to advocate for services on his behalf with the NSW Trustee and Guardian.

The views of Ms Z, Manager of the aged care facility in Regional NSW

13. Ms Kearns said that Mr UMD is now doing very well, after an initial adjustment period. There are good services provided at the facility, however Mr UMD would benefit greatly from extra funding for a carer to take him out more. This could be easily arranged through a local private nursing service. Ms Kearns said things are working very well with Mrs LCM making decisions for Mr UMD.

The views of the NSW Trustee and Guardian

14. The Tribunal spoke with a representative from the NSW Trustee and Guardian, who said that Mrs LCM should lodge a proposal with costings for extra funding for Mr UMD, and then the NSW Trustee and Guardian will consider releasing money for him. Ms Carter said that guardianship would have no bearing on Mrs LCM's ability to advocate successfully for extra funding. The representative noted that there are some outstanding issues with the sale of Mr UMD's property and the payment of an accommodation bond, and she will liaise with personnel from the aged care facility about that.

Other views

15. The Tribunal also spoke with Mr UMD's daughter, Ms QDD, who said she has not had contact with Mr UMD for some time, but she rings and speaks to staff at the facility about Mr UMD. She is happy that Mr UMD is settled in his accommodation, and does not envisage any changes to this. Ms QDD did not wish to participate further in the hearing. The Tribunal also spoke with Mr UMD's son, Mr ESD, who indicated that he did not want to participate in the hearing. Mrs LCM told the Tribunal that Ms QDD and Mr ESD have not had contact with Mr UMD for some time.

Are there decisions which need to be made by a guardian?

16. At the time of the last hearing there was significant disagreement among family members regarding where Mr UMD should live, and who should make medical and dental decisions on his behalf. The evidence is that he is now well settled in his accommodation at the aged care facility, and there is no suggestion that he should move. Ms QDD and Mr ESD have not had any significant contact with Mr UMD for some time, and Mrs LCM is accepted by service providers as the contact person to make decisions on his behalf. On the basis of this evidence, the Tribunal was satisfied that there was no further need for a guardian to be formally appointed to make decisions for Mr UMD.

17. Mrs LCM initially stated that she wanted the guardianship order to continue, to enable her to advocate for Mr UMD's health care and services needs. However after hearing the evidence of the representative from the NSW Trustee and Guardian, and after being informed that she could continue to make decisions as Mr UMD's person responsible, Mrs LCM agreed that there was no further need for a guardianship order. On the basis of this evidence, the Tribunal was satisfied that it was appropriate to allow the guardianship order to lapse. The financial management order remains in place.

18. The Tribunal was satisfied that Mrs LCM is the "person responsible" for Mr UMD under the Guardianship Act 1987 (NSW), and may give a valid consent for any major or minor medical or dental treatment that he may require.

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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: 02 December 2015