UPN

[2015] NSWCATGD 11

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	UPN [2015] NSWCATGD 11
Hearing dates:	26 February 2015
Date of orders:	26 February 2015
Decision date:	26 February 2015
Jurisdiction:	Guardianship Division
Before:	J Currie, Senior Member (Legal) S Taylor, Senior Member (Professional) M McCalman, General Member (Community)
Decision:	Guardianship order made, Public Guardian appointed. Financial management order made appointing NSW Trustee and Guardian.
Catchwords:	YOUNG PERSON LEAVING CARE – person in need of a guardian – balancing exercise/capacity to manage financial affairs
Legislation Cited:	Guardianship Act 1987 (NSW)
Cases Cited:	IF v IG & Ors [2004] NSWADTAP 3 TC v Public Guardian & Ors [2006] NSWADTAP 15
Category:	Principal judgment
Parties:	Mr UPN (subject person) Ms BRD (applicant)
Representation:	Separate Representative
File Number(s):	58224
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

(a) Guardianship

1. The Tribunal decided to make a guardianship order for Mr UPN. The Public Guardian was appointed as Mr UPN's guardian for 12 months with the functions of making decisions on his behalf about his accommodation, health care (including psychological counselling), medical and dental consents and services.

(b) Financial Management

2. The Tribunal decided to make a financial management order for Mr UPN. The management of his estate was committed to NSW Trustee and Guardian.

Background

3. Mr UPN is an 18-year-old man who lives at Regional NSW, with supported assistance from a supports provider. Mr UPN's mother, Ms ULC and younger siblings live at Southwest Sydney. His grandmother Mrs MFN lives at Regional NSW. Mr UPN's father is deceased.

4. Mr UPN was under the care of the Minister until his 18th birthday on 20 May 2014. This application is part of the "Leaving Care" protocol.

5. Mr UPN has been diagnosed with autism and with Attention Deficit Hyperactivity Disorder ("ADHD"). He has also been reported to have a range of behavioural psychological problems, including lack of emotional control, emotional inhibition, self-absorption, avoidance of feelings and anti-social tendencies. Although the correct diagnostic approach to these problems is a contentious area, there are verified incidents of Mr UPN having engaged in sexually inappropriate behaviour including alleged sexual abuse of a sibling and attempted photographing of breasts of female teachers and students at his school.

6. On 19 December 2014 the Tribunal received from Ms BRD an application seeking the appointment of a guardian and a financial manager for Mr UPN. On 22 January 2015 the Tribunal ordered that Mr UPN should be separately represented in all proceedings pending before the Tribunal. The purpose of the Tribunal's hearing at Newcastle on 26 February 2015 was to conduct the hearing of Ms BRD's application.

The hearing

7. At the end of these Reasons for Decision are lists of the parties to the application and witnesses at the hearing [Appendix removed for publication]. At the commencement of the hearing the Presiding Member explained the purpose and nature of the proceedings, the issues which the Tribunal would have to decide and the procedures which would be adopted for conducting the hearing.

8. The Guardianship Act 1987 (NSW) requires that before the Tribunal makes a decision on any application, it must bring the parties to a settlement or use its best endeavours to do so. This is not required if the Tribunal considers that it is not possible, or appropriate, to attempt to bring the parties to a settlement. At the hearing the Tribunal used its best endeavours to ascertain the issues, if any, between the parties. Although there were contentious issues at the hearing and in particular an issue as to whether Mr UPN was someone for whom a guardianship order could be made and whether in the circumstances an order should be made, there were no issues between the parties themselves.

What did the Tribunal have to decide?

(a)   Guardianship

9. The questions which had to be decided by the Tribunal were:

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

• Should the Tribunal make a guardianship order?

• If so, what order should be made? Specifically what functions should the guardian have?

• If a guardianship order is to be made, who should be the guardian?

• How long should the guardianship order last?

(b)   Financial Management

10. The questions which had to be decided by the Tribunal were:

• Is Mr UPN incapable of managing his affairs?

• Is there a need for another person to manage the affairs of Mr UPN and would it be in his best interests for a financial management order to be made?

• If an order is to be made on the basis of the answers to those questions, who should be appointed as financial manager?

Participation in the hearing by Mr UPN and his views

11. Mr UPN participated actively in the hearing. He commenced by telling the Tribunal that he liked carers doing things for him and he conceded that he did not know much about "medical stuff" and needed assistance to make appointments for medical attention. He confirmed that since November 2014 he has been living with 24-hour support in a transition house. He stated that he would like to move to a house which will better meet his needs, but he said that his preference was to find "a good spot" and stay in it rather than moving around. He is happy with the care and support he currently receives and he believes that his health is good. He confirmed that he is taking prescribed medication for ADHD and for sleep anxiety.

12. Mr UPN said that he thought it would be good for him to have a guardian. In particular he said that he thought the Public Guardian would be useful in finding him more permanent accommodation closer to his mother. Later in the hearing he said that he would accept having the Public Guardian to make decisions for him provided that his own views were taken into account.

13. In relation to his financial affairs, Mr UPN was able to identify that about 75% of his income went to a supports provider for board. Later in the hearing Mr UPN told the Tribunal that he was "completely capable" of managing his own affairs. He cited as an example the arrangements he had made to repay a Foxtel debt and to enter into a layby arrangement for a mobile phone. When it was put to him by Tribunal Members that he had received a lump sum payment of $14,000 and was reported to have spent it quickly, Mr UPN conceded that this was so. He explained that he had "got excited and decided to buy what I wanted" but he asserted that he was now better at saving and wanted to learn saving and budgeting skills. However, Mr UPN indicated that he would like to retain a certain amount in order to buy the things which he considered important.

14. He conceded that he continues to be "fascinated by new stuff" and that he continues to buy new video games which he becomes bored with after a short time. However he stated that video games keep him happy.

THE TRIBUNAL'S ASSESSMENT OF THE EVIDENCE AND DETERMINATION OF THE ISSUES

(a)   Guardianship

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

15. There was conflicting evidence on this issue.

16. The appointed Separate Representative, told the Tribunal that, as a result of interviewing him and having considered the medical and clinical reports available for the hearing, she was of the view that he was reasonably capable of forming decisions necessary for dealing with important day to day life issues and was quite capable of communicating his needs. The Separate Representative's observation was that Mr UPN would not be at risk if a guardian were not appointed. She did not think that he was "a person in need of a guardian", within the meaning of that term in the Guardianship Act 1987. The Separate Representative elaborated that she found Mr UPN to be a "concrete" thinker who takes some time to change his mind but that in her impression he is open to persuasion.

17. There was some support for this benign view as to Mr UPN's capacity in the written report of Dr Z, Consultant Clinical Psychologist, dated 20 February 2013. Dr Z saw Mr UPN on one occasion in December 2012 for assessment of his current cognitive and adaptive functioning. Dr Z reported that he saw no evidence of any obsessional thoughts or of an autism spectrum disorder and he suggested that this diagnosis be reviewed. He found Mr UPN to be a socially engaging, interactive and animated patient, who gave examples of friendships, social skills and daily social interactions. Notwithstanding these benign remarks, the assessment tools applied by Dr Z on that occasion indicated the following:

• Mr UPN's general cognitive ability (Full Scale IQ) was in the Borderline range and above that of only approximately 4% of similarly aged peers.

• Mr UPN's working memory assessment showed that his working memory was in the mildly delayed range. He scored better than only 2% of similarly aged peers.

• Mr UPN's score on the Processing Speed Index, which provides a measure of an individual's ability to process simple or visual information quickly and efficiently and to perform tasks based on that information quickly, showed that he was in the Mildly Delayed range. He scored better than only1% of similarly aged peers.

• In a scores summary forming part of the report, Mr UPN's working memory and processing speed were categorised as extremely low.

18. A benign view was also expressed by Ms BGP, Mr UPN's carer at his present accommodation. She said that she thought Mr UPN was capable of making some life decisions. When asked to clarify this she confirmed that she and her staff have to point out the necessary options to Mr UPN but he can then make the ultimate decision. She thought that Mr UPN could make decisions about which services the best for him, provided that he was given all the necessary options.

19. However there was also a substantial body of evidence which suggested that Mr UPN was prevented by his disability is from making some important life decisions and that because of his disability is he was at least partially incapable of managing his person, and thus was a "person in need of a guardian" as that term is defined in the Guardianship Act.

20. Dr Y, Forensic Psychologist, saw Mr UPN on three separate occasions apparently on 11 April 2012 and provided results of his assessments and his opinions in a report dated 26 April 2012. The Tribunal took into account the fact that this report is now some three years old, but it believed that the report should be given substantial weight because of the independent professional analysis undertaken by Dr Y and the strength of his views. Dr Y recounted at length the incidents of inappropriate behaviour, including sexually inappropriate conduct, illicit photography, use of and expressed desire for pornography and allegations of sexual assault by Mr UPN. He concluded from a series of assessments as follows:

• Mr UPN is an "under-incorporator", tending to spend too little time and energy gathering and integrating information about situations before acting.

• Mr UPN does not perceive even relatively obvious events in a socially conventional way and tends to neglect cues about what is socially correct. He has "a somewhat more primitive or immaterial view of the environment than most".

• Mr UPN uses a constricted style of coping with problems, the world and himself. "He objectifies, oversimplifies and may deny or ignore complexity and ambiguity, construing life as structured, factual and largely non-interactional."

• Psychometric testing indicated that Mr UPN had a range of psychological problems requiring treatment. These include his need to control, emotional inhibition, avoidance of feelings, under-incorporation, lack of drive, social avoidance, social isolation, social nonconformity and self-absorption.

• The information obtained from Dr Y's professional analytical tools, his interviews and his consideration of written material in his view supported the diagnoses of ADHD, autism spectrum disorder and a mild intellectual disability. Most significantly Dr Y's view was that these disabilities have caused the behavioural problems and decision-making difficulties which Mr UPN encounters in dealing with the real world.

21. The Tribunal also gave substantial weight to a more recent report, based on an assessment on 29 January 2014 and report dated February 2014 from Mr X, Psychologist. That report placed Mr UPN on the extremely low scale of processing speed; that he is his ability to attend to visual material and discrimination, short-term memory and motor coordination. He was found to be at the borderline level for verbal comprehension including verbal reasoning and concept formation and also at the borderline level for the full scale of scores which provide an overall range and view of cognitive functioning. Mr X concluded as follows:

"Given [Mr UPN]'s range of functioning it is likely that (he) will struggle with settings that are unclear and unique. (He) will likely find recalling and managing new information difficult, particularly if it is delivered verbally (and) will likely find changes to routine very difficult to manage. (He)will experience difficulty performing tasks that require memory recall…Tasks that require some form of patterning or sequencing will be easier for (him)…

Moving into adult life, [Mr UPN] will require some degree of support not only to manage the future (all adult responsibilities) but also to grow and develop those skills that young people acquire naturally through trial and error… (He) will require some degree of support through his early adult life at the very least. This support will need to be structured in a predictable and reliable manner."

22. At the hearing the applicant, Ms BRD, express the view that there was no real evidence that Mr UPN had had the opportunity to show that he could make his own decisions. However, significantly, she contended that if Mr UPN were to be forced or allowed to live without the support currently provided by the supports provider, he would have little idea who to approach to obtain reliable advice on important life matters. Mr W, Support Facilitator at the supports provider, noted in particular that Mr UPN had difficulty in choosing the correct health and medical pathways. Ms ULC, Mr UPN's mother believed that her son could make decisions only when "properly guided".

23. Ultimately the Tribunal was persuaded by the professional views of Dr Y and Mr X, based as they were on objective professional analysis, as well as the more current observations and views of Ms BRD. On the basis of that substantial professional evidence a Tribunal could not properly conclude that Mr UPN's capacity to make important life decisions was unaffected by his diagnosed disabilities (even allowing for some controversy as to the precision of the diagnosis, as raised by Dr Z).

24. In the Tribunal's view, if a person, because of a disability, requires substantial prompting or explanation as to the availability and desirability of particular options before he or she can reach a decision as to which course to take in important life matters such as health care, accommodation or the provision of services, then that person cannot be said to be independently capable of making important life decisions on those matters. The proper conclusion to be drawn from the available evidence is that Mr UPN's current capacity for decision-making is, at best, within that description. It follows that he is someone for whom the Tribunal could make a guardianship order because his disabilities do prevent him from making some important life decisions.

Should the Tribunal make a guardianship order?

The evidence

25. In considering this issue the Tribunal gave particular weight to the findings reflected in the medical and professional reports as discussed under the previous heading. The Tribunal noted the warnings and recommendations in Dr Y's report, particularly his conclusions as to the need for Mr UPN to have close supervision by professionals to assist him to develop his own capacity and to control his impulses. The Tribunal was also influenced by the view of the applicant Ms BRD to the effect that Mr UPN should be given the opportunity to take a greater degree of control over his decision-making but at this stage of his life he continued to require guidance and assistance to do this and in particular appeared to require assistance in making accommodation health care and services decisions. The Tribunal also noted that whilst Mr UPN expressed a substantial degree of confidence in his ability to "get by", he also conceded that he needed to have important decisions made for him and that it would be better if an independent person were available to do this.

Legal issues and requirements.

26. The Tribunal has a discretion as to whether or not to make a guardianship order, even if it has concluded that the subject person has disabilities which prevent him or her from making some important life decisions (that is, where disability and incapacity have been established). Not all people with a disability who are incapable of making life decisions should be regarded as being in need of a guardianship order.

27. In considering whether or not to make a guardianship order the Tribunal is required to have regard to the factors set out in subsection 14 (2) of the Guardianship Act 1987. Effectively there are 6 separate factors for consideration under that provision namely:

1. the views of the subject person themselves;

2. the views of that person's spouse, if any, if the relationship between them is close and continuing;

3. the views of the person, if any who has the care of the subject person (although, by operation of section 3D of the Act someone who receives remuneration for providing care is not regarded as having care of the subject person for this or related purposes);

4. the importance of preserving the subject person's existing family relationships;

5. the importance of preserving the person's cultural and linguistic environments; and

6. the practicability of services being provided to the subject person without the need for the making of such an order. This last factor is sometimes referred to as "the practicability factor".

28. In applying these factors it is clear from the authorities, including TC v Public Guardian & Ors [2006] NSWADTAP 15 at [12] that the Tribunal is determining whether a guardianship order should be made, the factors do not have an inherent weighting or hierarchy and the circumstances of each case will determine the weight to be given to each factor. In IF v IG & Ors [2004] NSWADTAP 3, [27-28] and subsequent decisions it has been recognised that in any particular case there will be varying amounts of evidence about various of the s 14 (2) factors, that there may not be any evidence about one or more of them and that the Tribunal should undertake a "balancing exercise" when considering the factors along with any other factors relevant to the particular case. In doing this the Tribunal should also be guided by one or more of the general principles in section 4 of the Guardianship Act.

29. That approach was adopted in this case.

The Tribunal's determination of this issue

30. In considering the subsection 14(2) factors, the Tribunal gave particular weight to the views of Mr UPN himself, the importance of preserving his existing family relationships, and the practicability of services being provided to him without the need for the making of a guardianship order. In relation to the last factor the Tribunal concluded that its findings in relation to the previous issue, as set out on page 7 above implied that because of current state of the development of Mr UPN's decision-making ability and the recognised need for support services for him to continue (which was not challenged by any of the participants) there appeared to be no practicable way, other than by the appointment of guardian, for decisions to be made for Mr UPN so as to best to promote his welfare and interests.

30. The Tribunal was satisfied on the basis of the evidence that there was a current need for decisions on behalf of Mr UPN, particularly in relation to his accommodation, health care, medical and dental consents and services, to be made by a guardian. The medical and other professional reports, as analysed above, were given substantial weight in reaching this decision.

31. It followed from this analysis that there was a need for a guardian to be appointed for Mr UPN and that such an appointment would promote his welfare and interests.

32. In reaching these conclusions, the Tribunal also took into account the guiding principles set out in section 4 of the Guardianship Act 1987. The principles (other than those already considered by reference to s14 (2)) which appeared to have primary relevance to this case were the need to protect Mr UPN from any neglect or exploitation, the need to encourage Mr UPN, as far as possible to be self-reliant in relevant decision-making and, as far as possible, to live a normal life in the community and the important need to respect Mr UPN's freedom of decision and freedom of action and to restrict these freedoms as little as possible. As subsection 4(a) of the Act requires, the Tribunal gave paramount consideration to Mr UPN's welfare and interests.

33. The Tribunal was satisfied on the basis of the evidence and its application of the s 14(2) and section 4 factors that it should make a guardianship order.

If so, what order should be made? Specifically what functions should the guardian have?

35. It followed from the Tribunal's analysis of the previous issues that a guardian for Mr UPN would require authority to make decisions on his behalf about his accommodation, health care, medical and dental consent and services. In relation to the decision-making function relating to medical and dental consents the separate representative agreed that Mr UPN continued to be reluctant to take particular medication.

If a guardianship order is to be made, who should be the guardian?

36. The Tribunal may appoint a private person or the Public Guardian as a guardian. The Tribunal will not appoint the Public Guardian if an order could be made appointing a suitable private person as guardian. So, wherever possible, the Tribunal appoints a family member or a friend to act as guardian. A private guardian must be at least 18 years old. Section 17 of the Guardianship Act 1987 expressly prohibits the Tribunal from appointing a person as guardian unless satisfied that the person:

• has a personality generally compatible with the personality of the person under guardianship,

• has no undue conflict of interest , particularly but not restricted to a financial conflict of interest, in respect of the person under guardianship; and

• is willing and able to exercise the functions of the order.

37. Ms ULC, Mr UPN's mother, indicated that she was willing to be appointed as his guardian. The appointed Separate Representative, was of the view that the appointment of Ms ULC would be impractical and may not be in the best interests of Mr UPN in light of the background of behavioural problems caused in the family environment by Mr UPN. This view was shared by Ms BRD, the applicant, who added that if appointed as guardian Ms ULC may be placed in a position of undue conflict of interest, where she will have an obligation to exercise a substantial degree of protection of her younger children against any repetition of the past behavioural incidents directed at those children and apparently instigated by Mr UPN himself. Ms ULC made no specific response to these contentions and the Tribunal was persuaded by them that Ms ULC was not a suitable person to be appointed as her son's guardian. There was no other private person nominated for consideration for appointment as guardian and on that basis the Tribunal appointed the Public Guardian.

How long should the guardianship order last?

38. An initial guardianship order can be made for a period of up to one year from the date on which it was made. However, an order of up to three years can be made, if the person the subject of the order has permanent disabilities, and is unlikely to become capable of managing his or her person and there is the need for an order longer than one year. The Tribunal decided to make an order for one year on the basis that although some early decisions would be needed from the guardian, particularly in respect of accommodation, services and possibly medical consents, there would be an ongoing need for the guardian to be available to make decisions for him in the exercise of each of the functions which had been granted.

(b)   Financial Management

Is Mr UPN incapable of managing his affairs?

The legal principles

39. There have been several recent Supreme Court decisions on this critical issue of when a person can be regarded as being incapable of managing their affairs. As a result of those authorities and earlier authorities, if the Tribunal finds that the person under consideration:

1. cannot manage their ordinary affairs of living; or

2. does not have a reasonably sound understanding of what their will assets, liabilities and sources of income are, or what needs to be done to preserve them, and for that reason is unlikely to be able to preserve their money or assets or is likely to be disadvantaged in their dealings; or

3. does not have at least some basic understanding of the complications and risks of what is proposed to be done (by themselves or others) with their assets or money and it is unlikely that those proposals will be achieved or there is a substantial risk that they will result in the person's money or assets being dissipated or lost; or

4. lacks the ability to identify situations where others may be attempting to benefit from the person's assets or money and consequently there is a real risk that the person will be disadvantaged or that their money or assets will be dissipated or lost;

40. then the Tribunal can be satisfied that the person is incapable of managing their affairs.

Application of those principles in the present case

41. There was a strong indication in many of the medical reports referred to in the discussion of the guardianship issues above, and particularly in the reports of Dr Y and Mr X, that Mr UPN's low processing speed and his adaptive skills which are within the extremely low range of cognitive ability may make it difficult for him to manage financial decision-making. The Tribunal accepted the evidence to the effect that Mr UPN may be able to learn somewhat "concrete" tasks such as simple budgeting, but concluded on the basis of the evidence that he had not yet reached a stage where he would be able to budget effectively independently and safely. If this was consistent with Mr UPN's own statement to the Tribunal that he recognised the need to learn how to spend and budget and that he wished to learn these skills.

42. The professional participants at the hearing were of the view that Mr UPN was not capable of managing his day to day ordinary affairs of living and would not have even a basic understanding of the complications of risks of what others might proposed to be done with his money or assets. In this regard the Tribunal noted evidence of Ms BRD as to the possibility of a substantial amount becoming available to Mr UPN through NDIS and her substantial concern that he would not know how to deal with that money. Although Mr UPN himself expressed his wish to "learn how to be better at saving and to budget" he stated that he felt he needed a financial manager to train him in these skills and he conceded that he still often became fascinated by "new stuff" particularly new video games and spent excessive amounts on such items.

43. On the basis of this evidence the Tribunal was satisfied that Mr UPN is not capable of managing his own affairs.

Is there a need for another person to manage the affairs of Mr UPN and would it be in his best interests for a financial management order to be made?

44. All participants in the hearing appeared to be in consensus that it was in Mr UPN's best interests for a financial manager to be appointed. There was no evidence to indicate the availability of any suitable informal practicable means of managing his affairs. The Tribunal concluded that there was a need for a financial manager and at such an appointment would be in Mr UPN's best interests.

If an order is to be made on the basis of the answers to those questions, who should be appointed as financial manager?

45. No private person was nominated for consideration for appointment as Mr UPN's financial manager and on that basis the Tribunal ordered that the management of his estate would be committed to NSW Trustee and 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: 30 June 2015