C S and M Y v the Guardianship Tribunal and the Public Guardian

What did the Tribunal have to decide?

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

• Is Mr ODK 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 and if so, what order should be made?
• Who should be the guardian?
• How long should the order last?

Is Mr ODK 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?

1. Section 14 of the Guardianship Act 1987 (NSW) ('the Act') provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she is "a person in need of a guardian". 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" (s 3(1) of Act). A person with a disability is a person who is: 1. intellectually, physically, psychologically, or sensorily disabled; 2. of advanced age; 3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or 4. otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation (s 3(2) of the Act).
2. The Tribunal had before it professional evidence, including a report of a psychologist dated 22 October 2016, a report of Ms Z, mental health social worker, dated 25 November 2016, and a report of a general practitioner dated 6 July 2016.
3. Mr ODK has cerebral palsy, spastic paraparesis, and epilepsy. He has very high care needs requiring 24-hour supervision and is wholly dependent on carers for his activities of daily living. There was no dispute that Mr ODK is unable to make decisions about his accommodation, care and services, his health and medical care, and his financial affairs.
4. The Tribunal had the opportunity to observe Mr ODK during the course of the Tribunal hearing. His presentation was entirely consistent with the opinions of the health professionals. On the evidence before it, the Tribunal is satisfied that Mr ODK has a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

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

1. The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order: 1. the views (if any) of: 1. the person, and 2. the person's spouse, and 3. the person's carer and 1. the importance of preserving the person's existing family relationships, and 2. the importance of preserving the person's particular cultural and linguistic environments, and 3. the practicability of services being provided to the person without the need for the making of such an order.
2. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2). When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).
3. Mr ODK has loving parents who, although no longer in a relationship, are united in their care and concern for the welfare of their son. Mr ODK also has a long-term carer, Ms EPC, who has provided extensive care and support to him in her home for the past 12 years. Mrs KBI and Mr CMK are involved in decision making for their son, who, together with Ms EPC, oversees Mr ODK's health and medical care.
4. Mr ODK is reviewed by medical practitioners on a regular basis, and has been hospitalised on a number of occasions due to health issues associated with his disabilities. During the Tribunal hearing, Mr CMK and Ms EPC gave evidence of the uncertainty that arises when medical professionals seek to obtain consent to treatment for Mr ODK, and are uncertain as from whom consent should be obtained. Whilst there is no conflict between Mr ODK's parents and carer, the situation can sometimes create delay and uncertainty.
5. Mrs KBI is the plan nominee for the purposes of Mr ODK's National Disability Insurance Scheme (NDIS) entitlements. Mr ODK's Coordinator of Supports is Ms Z. For the last two years, Mr ODK's NDIS funding has enabled the continuation of his current accommodation, which was put in place 12 years ago pursuant to Host Family care arrangements. However, it appears that Mr ODK's current accommodation and care arrangements are at risk, following information received from an NDIS officer that as Mr ODK has been assessed as suitable for group home accommodation, the funding for the current arrangements will cease. Mrs KBI and Mr CMK are very concerned at this prospect as they are of the view that Mr ODK's very high care needs are best provided by Ms EPC under the existing and longstanding arrangements. In particular, Mrs KBI and Mr CMK are very happy with the care provided by Ms EPC, who they indicated is attuned to Mr ODK's health issues and needs. Mrs KBI and Mr CMK told the Tribunal that they are able to visit Mr ODK at any time, and all decisions for Mr ODK are made in consultation with Ms EPC. Mrs KBI and Mr CMK believe that a change to Mr ODK's current accommodation and care would be contrary to his best interests.
6. Mrs KBI gave evidence of the significant difficulties she has encountered in communicating with NDIS representatives about these and other matters relating to Mr ODK's NDIS entitlements. She told the Tribunal that her messages are often not responded to, and she expressed frustration at the challenge in advocating for the stability of Mr ODK's care.
7. Mrs KBI and Mr CMK seek to be appointed as their son's guardians to provide them with formal authority to make decisions on their son's behalf and to advocate for him in his best interests.
8. All of the participants in the Tribunal hearing expressed support for the making of a guardianship order for Mr ODK, and for the appointment of Mrs KBI and Mr CMK as his guardians.
9. Mr ODK attended the Tribunal hearing in person. Due to his disabilities, he was unable to comprehend the nature of the application and the Tribunal proceedings generally. However, he appeared to be comfortable and content in the presence of his parents and his carer.

PRINCIPLES

1. In all of its proceedings, the Tribunal is required to act in accordance with the principles set out in s 4 of the Act, which in respect of Mr ODK requires that:

• His welfare and interests are to be given paramount consideration
• His freedom of decision and freedom of action should be restricted as little as possible
• He should be encouraged as far as possible to live a normal life in the community
• His views should be taken into account as much as possible
• The importance of preserving his family relationships and his cultural and linguistic environment should be recognized
• He should be encouraged to be as self-reliant as possible in respect of his personal, domestic and financial affairs
• He should be protected from neglect, abuse and exploitation

1. In coming to its decision, the Tribunal took into account all of the evidence, both oral and documentary. It also took into account the submissions of the parties and participants, as well as the important principles set out above.
2. On balance, the Tribunal was satisfied that there is need for a guardianship order and it is in Mr ODK's best interests that a guardianship order be made. The Tribunal accepts that Mr ODK's family and service providers have encountered obstacles and challenges in advocating on his behalf. There are ongoing decisions to be made about Mr ODK's accommodation and services in light of the changes to the funding arrangements for his care brought about by the NDIS. The Tribunal formed the view that the authority conveyed by a guardianship order would enhance the ability of Mr ODK's parents to make important lifestyle decisions for Mr ODK in his best interests
3. Moreover, the Tribunal considered that the making of a guardianship order would not be unduly restrictive of Mr ODK. In this regard, due to the severity of his disabilities Mr ODK has very limited communication and has no capacity to advocate for himself. In addition, whilst his views were not able to be obtained, it appears Mr ODK welcomes, and benefits from, the active involvement of his parents and carer in his life.
4. Accordingly, the Tribunal was satisfied that a guardianship order should be made.

What decision making functions should be included in the order?

1. The Tribunal finds that the guardian's functions should extend to decision making with respect to accommodation and services, both of which are likely to arise imminently and into the future for Mr ODK. In addition, in order to make properly informed decisions for Mr ODK and noting the severity and complexity of his health concerns, it will be important for the guardian to have regard to Mr ODK's health care, and be able to liaise with the health professionals and make informed decisions about his treatment as required. In this regard, the Tribunal formed the view that further clarity around the person/s for whom informed consent should be obtained is appropriate in the circumstances.
2. Accordingly, the Tribunal was satisfied that the guardianship order should include the functions of accommodation, services, health care and medical and dental treatment.

Who should be the guardian?

1. The Tribunal was cognisant of the difficulties encountered by Mrs KBI and Mr CMK in attempting to liaise with NDIS representatives and advocate for appropriate accommodation and support for their son. The Tribunal informed Mr CMK and Mrs KBI that if they were to be appointed as joint guardians they would likely both have to be involved in each decision when exercising the functions of the guardianship order. In attempting to avoid potential difficulties created by the practical effect of the guardianship order, Mr CMK and Mrs KBI agreed that Mrs KBI should be appointed as guardian and Mr CMK should be appointed as alternative guardian for Mr ODK. In this regard, the Tribunal was impressed with the way in which Mr CMK and Mrs KBI consult with one another and with Ms EPC in relation to all major decisions for Mr ODK.
2. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He/she must: 1. have a personality generally compatible with the personality of the person under guardianship; 2. have no undue conflict of interest (particularly financial) with those of the person; and 3. be able and willing to exercise the functions of the order.
3. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep, and Re B [2011] NSWSC 1075, at [66]).
4. In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.
5. The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed (s 15(3) of the Act).
6. It is evident that Mrs KBI and Mr CMK love and care deeply for their son. They have demonstrated an ability to work collaboratively with the health professionals and service providers involved in their son's care, and are strong advocates of his rights and interests.
7. On the evidence before it, the Tribunal was satisfied that Mrs KBI and Mr CMK meet the requirements to be appointed as the guardian and alternative guardian for Mr ODK.

How long should the order last?

1. 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, is unlikely to become capable of managing his or her person and there is the need for an order longer than one year.
2. Having regard to the frequency of the decisions to be made for Mr ODK particularly in relation to those arising from his NDIS entitlements, the Tribunal decided to make an order for 18 months.

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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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 March 2017