ZCT

[2024] NSWCATGD 4

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ZCT [2024] NSWCATGD 4

Hearing dates:

15 March 2024

Date of orders:

15 March 2024

Decision date:

15 March 2024

Jurisdiction:

Guardianship Division

Before:

S Pinto, Senior Member (Legal)

Decision:

The guardianship order for ZCT made on 28 February 2024 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 five months from 28 February 2024.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Access

To decide what access ZCT has to others and the conditions of access.

b) Accommodation

To decide where ZCT may reside.

c) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take ZCT to a place approved by the guardian.

ii) keep them at that place.

iii) return them to that place should they leave it.

d) Services

To make decisions about services to be provided to ZCT.

e) Legal services

To make decisions for ZCT in relation to access to legal services.

f) Travel

To make decisions about whether or not ZCT can travel to any place outside Australia.

g) Passport

To make a decision about whether or not the passport of ZCT should be surrendered to the guardian or some other authority the guardian nominates pending a decision by the guardian concerning travel.

CONDITION:

5. The condition of this order is:

a) Standard Condition

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

Catchwords:

GUARDIANSHIP – requested review of a guardianship order – subject person diagnosed with schizophrenia – NDIS participant – allegations of misuse of NDIS funds by the subject person’s family – allegations of fraud by NDIS provider – concerns that the subject person has been exploited for financial gain – continued need for a guardianship order – need for accommodation decisions with authority for others to bring accommodation decisions into effect – need for access, services, and legal services decisions – need for travel and passport decisions – no private person suitable to be appointed – Public Guardian appointed – order to be reviewed in five months

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-2), 4, 14(1)-(2), 17(1), 25(2)(b), 25C(2)

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

014: Requested Review of Guardianship Order

ZCT (the person)
NZK (applicant)
Public Guardian (appointed guardian)

Representation:

M Falloon, separate representative for ZCT

File Number(s):

NCAT 2020/00277472

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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

REVIEW OF GUARDIANSHIP ORDER

What the Tribunal decided

1. The Tribunal reviewed the guardianship order made on 28 February 2024. The Tribunal renewed the order for five months from 28 February 2024 and reappointed the Public Guardian with functions of access, accommodation, to authorise others to implement accommodation decisions, services, legal services, and passport and travel restrictions. The order will be reviewed at the end of July 2024.

Background

2. ZCT is 24 years old. Until recently, she was living in supported independent living in a suburb in Western Sydney managed by disability service provider (DSP1). This accommodation has since been terminated and she is currently living with her family and at times in hotels in another suburb in Western Sydney.

3. ZCT has been diagnosed with schizophrenia.

4. ZCT has been subject to guardianship and financial management orders since 2021 when the Tribunal made a guardianship order appointing the Public Guardian with functions of legal services, accommodation, services, health care and medical/dental treatment. When the order was reviewed on 23 June 2022, the Tribunal reappointed the Public Guardian with the same functions but added an access function to the order. ZCT’s finances are managed by the NSW Trustee and Guardian.

5. On 13 March 2024, the Tribunal received an urgent request to review the guardianship order made on 28 February 2024. The application was made by GZH, support coordinator, of a support coordination organisation. GZH stated that there are concerns that ZCT’s family is misusing her National Disability Insurance Scheme (NDIS) funds. The family has engaged ZCT with an NDIS service (DSP2) and it is alleged that the provider is paying family members for ZCT to marry the director of the service. ZCT has also disclosed that she has been involved in sexual encounters with this man. The director of the services has booked hotel rooms for ZCT and paid her family money. GZH stated that ZCT’s family does not allow her to speak on the phone or leave the home without permission. GZH also stated that approximately $100,000 of ZCT’s NDIS funding has been used in a relatively short period.

6. GZH requested that the guardianship ordered made in February 2024 be varied to include functions of access, accommodation, health care, legal services, and medical and dental consents. She stated that these functions have been included in previous guardianship orders and it is requested that they are reinstated for ZCT’s safety and welfare.

7. On 28 February 2024, the Tribunal reviewed the guardianship order made on 8 February 2023 and appointed the Public Guardian for 12 months with the function of services.

8. On 15 March 2024, the Tribunal ordered that a separate representative should be appointed for ZCT. Ms Mary Falloon has accepted the appointment. Ms Falloon has previously been appointed as a separate representative for ZCT.

The hearing

9. ZCT participated in the hearing by telephone. NZK participated in the hearing by telephone as the substitute applicant for GZH. Other persons who participated in the hearing by telephone included Ms Z, support worker, and a representative from the Public Guardian. Ms Y, CEO of DSP1, Ms X, and Ms Mary Falloon participated in the hearing by videoconference.

10. A list of the parties and hearing participants is at the end of these reasons for decision. [Appendix removed for publication.]

What did the Tribunal have to decide?

11. When reviewing a guardianship order at the expiration of a period or which the order has effect, the Tribunal may renew, renew and vary the order or determine that the order is to lapse: the Guardianship Act 1987 (NSW) (the Act), ss 25(2)(b) and 25C(2).

12. The questions to be considered are:

• Is ZCT someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

• 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?

Is ZCT someone for whom the Tribunal could renew an order?

13. The Tribunal can renew a guardianship order if satisfied that ZCT is “a person in need of a guardian”: the Act, s 14(1).

14. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person”: the Act, s 3(1). A person who has a ‘disability’ means a person who is intellectually, physically, psychologically or sensorily disabled; is of advanced age; is mentally ill within the meaning of the Mental Health Act 2007 (NSW); or who is otherwise disabled; and who by virtue of that fact, is restricted in one or more life activities to such an extent that he or she requires supervision or social habilitation: the Act, s 3(2).

15. Reports provided to the Tribunal in 2021, when the guardianship order was first made, indicate that ZCT was diagnosed with schizophrenia at the age of 16. She also had diagnoses of depression, anxiety, borderline personality disorder and a mild intellectual disability. She had previous presentations and admissions to hospital for treatment of her mental illness. The Tribunal heard evidence from doctors who were treating ZCT during a hospital admission that she had relapsed schizophrenia and had been living in a refuge when she experienced a deterioration in her mental state.

16. Previous tribunals have referred to evidence from the mental health team of a public hospital regarding substantial intervention to provide ZCT with assistance; and previous community treatment orders requiring her to receive anti-psychotic medication. In 2022, when the guardianship order was reviewed, the Tribunal was advised by the public hospital mental health team that ZCT lacked the capacity to make safe and reasoned decisions about many aspects of her care and accommodation; she was impulsive and suggestible and could be coerced by her family to make decisions that were not in her best interests.

17. ZCT has asserted in previous hearings and during the most recent hearing that she does not need any assistance with making decisions. She asserted forcefully during the most recent hearing that she does not need a guardian and having a guardian is detrimental to her and she has been neglected by the Public Guardian.

18. Previous tribunals have found that ZCT has schizophrenia and associated difficulties in making important life decisions. I have had regard to ZCT’s views, but I have no new evidence that would alter the findings of previous Tribunals. I am satisfied that ZCT remains a person for whom I could renew the guardianship order made on 28 February 2024. I am satisfied that ZCT continues to have a mental illness and as a result she is partially incapable of managing her person.

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

19. When considering whether to renew a guardianship order, the Tribunal must have regard to the views of the person, if they can be obtained; the person’s spouse, and the person’s carer; the importance of preserving the person’s existing family relationships; the importance of preserving the person’s cultural and linguistic environments; and the practicability of services being provided without the need for an order. These matters have no hierarchy or weighting, and the Tribunal must undertake a balancing exercise when considering these matters: the Act, s 14(2).

20. In considering the above issues, as in making all other orders under the Act, the Tribunal must act with the welfare and interests of the person concerned as the paramount consideration, and in accordance with the other principles set out in s 4 of the Act. These principles include that the person’s welfare and interests should be given paramount consideration; freedom of decision and action should be restricted as little as possible; his or her views should be taken into consideration; the importance of preserving cultural and linguistic environments should be recognised; and he or she should be protected from neglect, abuse and exploitation.

Previous guardianship order

21. When the guardianship order was renewed on 28 February 2024, the Public Guardian recommended that the order should be renewed only with a services function. The Public Guardian stated that ZCT has made all her own decisions about her accommodation and health care and medical services, and there had been limited contact with her. However, due to concerns about fraud from a NDIS provider, the Public Guardian recommended that the services function should continue.

22. During the previous hearing, the Tribunal was informed that a person called WX was offering inducements for ZCT to change her NDIS provider. The Tribunal stated the following in relation to this matter:

“The evidence about ‘[WX]’ was all novel. I could not resolve the competing allegations in the time allowed and in the absence of more fulsome evidence. It was alarming to me, however, that there was some evidence of an inducement to [ZCT]’s parents to change a NDIS service provider. It was equally alarming that the Public Guardian was aware of attempted fraud in respect of NDIS funds. It is fundamental that [ZCT]’s NDIS funds are used to her benefit. I considered it essential that the services function remain in place while the allegations of fraud are investigated and to assess any request by new service providers to provide services to [ZCT] and on what terms.

E-mails provided for the current application

23. The Tribunal was provided with e-mails regarding conversation between ZCT and support workers, during which she purportedly advised that she had been spending time with a man called WX with whom she had been sexually active. She said he had supported her at a meeting with the Public Guardian and he was a support worker. The e-mails indicate that ZCT reported that her family had been promised more money from a new NDIS provider, and she has been receiving more money every week.

24. Other emails indicated that ZCT had recently contacted her support workers after an argument with her mother who told her to get out of the car and left her in West Sydney by herself. On other occasions, ZCT reported that “something very bad is happening” with a new NDIS provider. The e-mails stated that DSP1 and her supports from the support coordination organisation are very concerned about ZCT because of serious concerns that her father has connections with DSP2, a new provider which paid $4000 to the family and purchased telephones for them.

25. Other e-mails refer to concerns regarding the depletion of ZCT’s NDIS funds in a short space of time.

Hearing discussion

26. During the hearing, Ms Falloon said she spoke with ZCT that morning as soon as she was appointed as her separate representative. Ms Falloon confirmed that she has previously assisted ZCT in guardianship and financial management applications. She said ZCT repeatedly said she does not want to be under any orders and does not want NDIS funding. Ms Falloon said she is very concerned for ZCT’s welfare and there are some very “concerning matters”.

27. NZK said the concerns that have led to a request for the review of the guardianship order are in relation to ZCT’s and her family’s engagement with a service provider, DSP2, which has not been approved by the Public Guardian. NZK said ZCT had previously been assisted by the support coordination organisation but “somewhere along the line” DSP2 took over. Since that time, ZCT has been staying in hotels in West Sydney and there have been incidents where she has been found wandering after arguments with her mother. There are also concerns that arrangements have been made for ZCT to marry a support worker from DSP2. NZK said this information has been reported to the police and complaints have been made to the Ageing and Disability Commission (ADC) which has met with ZCT’s approved NDIS supports.

28. Ms X said there are also concerns that there is $100,000 missing from ZCT’s NDIS plan and the money was used in a very short space of time. The National Disability Insurance Agency (NDIA) has since placed a stop on approvals for the release of further NDIS funds.

29. Ms Z said she is very concerned for ZCT’s safety. She believes ZCT is neglected by her family and needs a safe place to live. She said ZCT is not safe with her family because her mother constantly fights with her and pressures her. She believes ZCT’s family is motivated only by financial gain and the access function in the guardianship order should not have been removed. She said ZCT told her she had sex with WX.

30. Ms Y said ZCT had been staying in a hotel room provided by DSP2, which is very unsuitable. There are also concerns about the arrangements at the family home. Ms Y said ZCT was homeless when the Public Guardian was first appointed and there have been ongoing and very difficult family dynamics. She said she is very concerned about the involvement of the male person from DSP2.

31. The Public Guardian representative said she has been in contact with the ADC in relation to the current matters concerning ZCT. She said it has been difficult to clarify if she is having a sexual relationship with the man but there are concerns that ZCT could be returned to Libya to be married.

32. The Public Guardian representative said she is seeking for the functions previously included in the guardianship order to be added to the current order. She said the access function is very important because there are serious concerns of fraud from DSP2. She said they will not let go of ZCT and her family whom they view as a “cash cow”. The Public Guardian representative also said there may be a need for an Apprehended Violence Order (AVO) to be made against WX. The Public Guardian representative said although it will be difficult to implement accommodation decisions, the inclusion of this function may dissuade other fraudulent providers from involvement if they are aware the Public Guardian can override arrangements for ZCTs’ accommodation.

33. The Public Guardian representative also said in the past ZCT was taken to Libya and locked in a room. Her father has mentioned that ZCT may be married to someone and there are very serious concerns this could occur. She confirmed that she is seeking the inclusion of travel and passport functions in the guardianship order.

34. Ms Falloon said her views differ from those she put forward in the February 2023 hearing. She said there has been different and serious concerns raised and based on the information provided she supports a variation of the orders to include accommodation, access, and legal services functions. She said it is important that these functions are restored while there is a careful and considered assessment of ZCT’s situation, which is not currently possible with the “relatively spare functions” given to the Public Guardian.

35. During the hearing, ZCT strongly refuted all the allegations. She said they are all untrue and she has not had any relationship with WX.

My consideration

36. I acknowledge that much of the evidence discussed above is at this point unsubstantiated, and I have had regard to ZCT’s vehement denials of the allegations. However, I am satisfied that there is an ongoing inquiry by the ADC, the involvement of the NSW police, and serious concerns raised by Ms Falloon, the Public Guardian, DSP1, and the support coordination organisation representatives. These concerns were also highlighted by the previous Tribunal but at that time there was even less information than is currently available.

37. I note that the concerns regarding ZCT’s family are not new and have been raised consistently since guardianship orders were first made in 2021. For example, in its decision in 2022 the Tribunal noted that ZCT was hospitalised and homeless, having left the family home some months earlier. There has been AVOs in place against ZCT’s family and involvement with the police. The Tribunal has noted in financial management orders that her family has pressured her for money and concerns have been raised regarding their financial motivations. ZCT’s mother had also reportedly expressed very divergent views about her daughter’s best interests than her mental health team and others involved in supporting her. The Tribunal was advised in 2022 by the Mental Health Team that ZCT’s mother had harassed care workers and ZCT was disturbed by her mother’s behaviour.

38. I am satisfied, having considered the past and current concerns regarding ZCT’s circumstances and vulnerability from her family and others, that there is sufficient evidence to warrant a review of the guardianship order and a variation of the functions.

39. I firstly accept that the guardianship order should be varied to include an access function. This will enable the Public Guardian to consider whether access should be restricted to ZCT by persons from DSP2. It will also enable the Public Guardian to consider whether access should be restricted to ZCT by her family members, if it is found they are involved in exploitation of ZCT for financial gain.

36. I am also satisfied there is an urgent need for consideration to be given to ZCT’s current accommodation, as it appears she is living at times with her family and at other times in hotels in West Sydney. I accept that the latter is clearly unsuitable, and she is vulnerable and at risk of harm. As above, I also note that accommodation with her family and conflict with her mother has in the past been unsuitable for ZCT’s needs. I am satisfied, therefore, that a guardianship order should include an accommodation function. I accept the views of the Public Guardian that a guardian may also require an authorise others function to enable ZCT to be removed from a situation where she is at risk or to deter unscrupulous NDIS providers from organising unsuitable accommodation.

37. I have continued to include a services function in this order. Issues relating to the involvement of DSP2 clearly require further investigation and possible legal action. I accept that there may also be a need for an AVO to be taken against any persons involved with ZCT. I have, therefore, also included a legal services function in this order.

38. Whilst there is limited evidence that ZCT’s family intend to remove her from Australia, serious concerns have been raised about their involvement with DSP2, and there are suggestions that there is a proposal that ZCT should marry WX, who is allegedly a support worker from DSP2. I accept that ZCT has been removed from Australia in the past and her situation in Libya may have been exploitative. I have, therefore, included functions of passport and travel restrictions in this order.

39. I acknowledge the restrictive nature of this order, and the limited evidence on which the order has been varied. However, I accept Ms Falloon’s comments that investigations in relation to the serious concerns raised, cannot be undertaken with the previously “spare functions” in the guardianship order. I also accept that there is a need to ensure ZCT’s safety and welfare whilst any investigations are undertaken.

40. In reaching the above conclusions, I have had regard to the factors in s 4 and s 14(2) of the Act. I am satisfied that there is a need for a guardian to make important decisions to ensure ZCT is not vulnerable to neglect, abuse or exploitation.

Who should be the guardian?

45. The Tribunal must be satisfied that any person appointed as a private guardian meets the requirements of s 17(1) of the Act. These are that he or she must have a personality generally compatible with the personality of the person under guardianship; have no undue conflict of interest (particularly financial) with those of the person; and be able and willing to exercise the functions of the order.

46. ZCT’s family has previously been found to be inappropriate for appointment as guardians or financial managers as they have pressured her financially and in other ways. I consider it appropriate in all the circumstances that the Public Guardian continues to be appointed as ZCT’s guardian.

The length of the order

47. In February 2024, the Tribunal renewed the guardianship order for 12 months. I am satisfied that a shorter order is appropriate as I have varied the order to enable consideration of the issues raised above. I have found that there is limited evidence regarding these matters, but they warrant further investigation. I am satisfied that a period of five months from the date of the previous order is sufficient time for the above issues to be considered and to enable the Tribunal to consider if the order should be varied, renewed or lapsed. As above, the order will be renewed at the end of July 2024.

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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: 24 May 2024