DYH v Public Guardian - [2021] NSWCATAD 136 - NSWCATAD 2021 case summary — Zoe

NSWNSWCATAD

DYH v Public Guardian

[2021] NSWCATAD 136

NCAT Administrative and Equal Opportunity|2021-02-15

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2021-02-15

Catchwords

s63 Civil and Administrative Tribunal Act (No.2) 2013 (NSW)
ss36, 63,65 Guardianship Act 1987(NSW)

Source

Original judgment source is linked above.

Catchwords

s63 Civil and Administrative Tribunal Act (No.2) 2013 (NSW)ss36, 63,65 Guardianship Act 1987(NSW)

Judgment (53 paragraphs)

[1]

What is this matter about?

This matter involves the Tribunal's review of two decisions by the NSW Public Guardian, which were made in the Public Guardian's capacity as the appointed guardian of PQX. The review of those decisions was sought by one of PQX's daughters DYH, her grandson EIV and her estranged husband ENC. DYH represented the other two Applicants at the hearing.

[2]

PQX's background, her family members and her established disabilities

PQX is aged 81 years. She has been diagnosed with dementia in the form of Alzheimer's disease. PQX migrated to Australia in 1967 and is of Greek culture and heritage. Her first language is Greek and I understand that she speaks little English.
PQX is married to ENC, but they are estranged. ENC has resided mainly in Cyprus over the last 10 years, although, as I understand it, he has made occasional visits to Australia. PQX has two daughters, DYH and PYY and a son LYZ. PQX lives in a residential property in southern Sydney, of which she is a joint owner. Her co-owner was previously her husband ENC but as I understand it, PQX now owns the property jointly with her grandson EIV, who is the son of DYH. PQX's son LYZ lives in that property with her.

[4]

The Guardianship Division's findings and orders

On 15 February 2019 the Guardianship Division of this Tribunal received from PQX's husband ENC an application which sought the appointment of a guardian and of a financial manager for her. A previous application for such appointments had been made by PQX's daughter DYH in March 2018, but it had been withdrawn and formally dismissed.
ENC's applications were heard on 29 May 2019. At that hearing the Tribunal also conducted a review of the making and of the operation and effect of the Power of Attorney. On that date the Tribunal made the following orders: 1. Most relevantly for these proceedings, a guardianship order for PQX. The Public Guardian was appointed as her guardian. ENC and LYZ each also sought to be appointed as guardian, but the Tribunal found that neither of them met the requirements for appointment. The Public Guardian's appointment was for 12 months from 29 May 2019. The Public Guardian was given authority to make decisions on PQX's behalf about her access to others, her accommodation and health care, the provision of substituted consent for her medical or dental treatment and decisions about the services and legal services she required. As I understand it, the Public Guardian's appointment was subsequently renewed and was in place at the time of the making of the decisions under review in the present proceedings. It was not disputed in the present proceedings that the Public Guardian had the authority to make the decisions under review as PQX's guardian. 2. The Tribunal decided to undertake a review of the operation and effect of the Power of Attorney. It decided not to make any orders under section 36 of the Powers of Attorney Act 2003, but rather to treat the application for review of the Power of Attorney as an application for a financial management order. 3. The Tribunal made a financial management order for PQX, declaring her estate to be subject to management under the NSW Trustee and Guardian Act 2009 and committing the management of her estate to NSW Trustee and Guardian ("NSW Trustee").

[15]

The correct and preferable decision and the section 4 principles

As noted above, s63(1) of the ADR Act requires the Tribunal in determining an application for administrative review to decide what the correct and preferable decision is. Clearly, that must involve determining whether the decision under review was the correct and preferable one.
Moreover, in determining whether each of the decisions under review here was the correct and preferable one, I must consider the extent of the Public Guardian's compliance with section 4 of the Guardianship Act. That section sets out important general principles which must be observed by anyone exercising functions under the Act with respect to people who have disabilities.
The principles (which I have referred to in these reasons as "the Section 4 principles") are these: "(a) 0the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles. "
Most significantly, paragraph (a) requires the welfare and interests of the person to be given paramount consideration.
Clearly the Public Guardian exercises functions under the Guardianship Act when making a decision as guardian appointed under a guardianship order, as here, and accordingly, in making the decisions under review the Public Guardian was under an obligation to comply with the section 4 principles and in particular to give paramount consideration to PQX's welfare and interests.

[18]

The PG 's Reasons

The Public Guardian's case was asset out in its "reasons for decision" document dated 20 November 2020 ("the PG's Accommodation Reasons") supplemented by oral submissions at the hearing by Mr Sean Hosking, the Public Guardian's Regional Manager, Southern.
In the opening paragraph of the "reasoning" section of the document, the Public Guardian asserted that: "In making a decision to decline (DYH's) accommodation proposal the Public Guardian considered the general principles of the Guardianship Act 1987 with particular reference to the principles of promoting (PQX's) welfare and interests, her capacity to remain living in her own home in the community (rather than a residential facility) and her will and preference."
The PG's Accommodation Reasons went on to discuss how the Public Guardian, in reaching its decision, had applied each of those elements and other Section 4 principles, namely PQX's welfare and interests, freedom of decision and action, community life, views, family relationships and cultural and linguistic environments, her self-reliance in personal domestic and financial affairs and her protection from neglect, abuse and exploitation. Some of these elements and principles were treated briefly, but more detailed observations and conclusions were provided for others. In the order in which they were dealt with in the PG's Accommodation Reasons, these were: 1. "welfare and interests". I have dealt with this in more detail at [37] to [39] below. 1. "freedom of action and decision". The Public Guardian asserted that PQX's freedom of action and decision PQX's continued will and preference are to remain living at home. 1. "community life". The Public Guardian asserted that PQX is provided with "24/7" support within her home and continues to access friends, family, services and activities in the community and, as a result of the formal supports funded by her ACAT package, she is able to access the community for shopping and other recreational activities, which she reportedly enjoys. 1. "client's views". The Public Guardian confirmed that one of its officers had visited PQX in her home and spoken to her by telephone with the aid of a Greek interpreter on several occasions and that on the occasions when PQX's views as to her accommodation had been sought she had consistently maintained a strong view that she does not wish to live anywhere other than her home. As the Public Guardian noted, that was consistent with what PQX told the Psychiatrist at their consultation from 15 October 2020. 1. "family relationships and the cultural and linguistic environments". The Public Guardian confirmed that it was its understanding that PQX has access to those family members and friends that she wishes to see and that she is encouraged to maintain relationships. In the Public Guardian's view PQX's current family care arrangements also promote her cultural and linguistic identity. 1. "Self-reliance in personal, domestic and financial affairs". The Public Guardian noted that PQX's financial affairs are managed by NSW Trustee under her financial management order and that she was observed to need some assistance with domestic tasks. 1. "Protection from neglect, abuse and exploitation". The Public Guardian stated that there was no evidence that PQX had been subject to any neglect, abuse or exploitation under her current living arrangements.

[22]

The PG's Access Reasons

The introductory section of the PG's Access Reasons explained that it was not until 18 November 2020 that the Public Guardian received the Psychiatrist's report dated 15 October 2020 and that in relation to possible trial access arrangements, the Public Guardian took into account the observations in that report that: "Detail about family visiting was difficult to gain due to (PQX's) memory deficits and inconsistent responses. As such, her expressed preferences over time will provide greater information about this."
In the "Reasoning" section of the PG's Access Reasons the Public Guardian emphasised that in considering whether trial access arrangements should be introduced it considered what it termed the "general principles of the Guardianship Act". When considered in the context of that document as a whole, it is clear that that is a reference to the Section 4 principles (discussed in more detail above).
The document then adopted a similar approach to that taken in the PG's' Accommodation Reasons, in that the access proposal was measured against what the Public Guardian regarded as the relevant section 4 principles.
In the order in which they were dealt with in the PG's Access Reasons, these were: 1. "Welfare and interests" The Public Guardian recorded that PQX had maintained during the term of the current and previous guardianship orders that she did not wish to have contact with her daughter DYH and that on several occasions when the possibility of such access was raised with PQX she had become distressed and upset at the prospect of seeing DYH. The Public Guardian said that the trial access arrangement in the presence of an independent third-party carer would provide the opportunity for PQX to choose whether she has contact with DYH "on the day of the access meeting".(But, as I understood the Public Guardian's case, that would include the possibility of further access). 1. "Freedom of decision and action" The Public Guardian contended that the proposed access arrangement would encourage PQX to exercise her freedom of choice within a supported environment. 1. Community Life The Public Guardian confirmed that PQX is provided with "24/7" support within her home and continues to access friends, family, services and activities in the community and that the family and friends who PQX wishes to see are able to visit her and that that allows her to be supported by them to access the community. 1. Client's own views The Public Guardian recorded that it had sought PQX's views on several occasions in relation to her access to others and that, significantly she had consistently maintained the view that she does not wish to see or speak to her daughter DYH, on the basis that she apparently believes that DYH has caused ongoing "trouble". The Public Guardian also recorded that on a previous occasion when PQX's views on access had been sought, she became upset when discussing the topic. The Public Guardian's view was that the important element in the access proposal was the presence of an independent third-party (a formal care provider) with whom PQX was familiar and who speaks Greek and that is because PQX's access to that independent third-party will support her if she chooses to participate in the trial access. 1. Family relationships, cultural and linguistic environments The Public Guardian was of the view that the access proposal would continue:" to allow the opportunity to preserve PQX's relationships with all family members and friends who she wishes to see". 1. Self-reliance in personal, domestic and financial affairs. I could not glean from the Public Guardian's comment on this principle how it was relevant to the access proposal. 1. Protection from neglect, abuse and exploitation. The Public Guardian simply said: "The decision accords with this principle."

[24]

The documentary material presented by DYH

DYH appeared at the hearing as the agent of the second and third applicants, that is, respectively, ENC and EIV, who took no part in the hearing.
Prior to the hearing DYH lodged a substantial amount of documentary material comprising over 220 pages. This included several sets of written submissions and attached documentation, including in particular: 1. a letter to the Tribunal dated 12 January 2021; 2. brief submissions on both the accommodation and the access decision dated 12 January 2021 and lodged on 15 January 2021; 3. substantial submissions consisting of unnumbered pages of text and annexures, again covering both the decisions under review, dated 17 January 2021 and lodged on 25 January 2021; 4. a bundle of submissions consisting of unnumbered pages dated 22 January 2021 and lodged on 28 January 2021; 5. submissions covering the access decision under review, with some relevance to the accommodation decision under review, dated 2 February 2021 and lodged on 5 February 2021; 6. substantial documentation, comprising unnumbered pages, dated 2 February 2021; 7. further substantial documentation, comprising unnumbered pages, dated 8 February 2021;and 8. further submissions covering both decisions under review consisting of unnumbered pages and annexing further (unnumbered) pages, which included copies of certain reported cases which she relied, dated 8 February 2021 and lodged on 12 February 2021.
Much of the text of the submissions was in bold font. Substantial parts of it appeared in block capitals as well as bold font. A substantial part of it was repetitive of information or submissions raised previously by DYH. Some of it defeated attempts to ascertain its relevance to these particular proceedings. These features did not facilitate an early understanding of DYH's contentions, or of the relative importance which she attached to the material which was not presented in bold or in block capitals.
I read all of the Applicants' documentary material. It required substantial re-reading of much of it to unravel and to comprehend some of the contentions. Not all my attempts to unravel and comprehend were successful.
At the hearing DYH made substantial oral submissions and responded to the questions I raised.
DYH and each of the other Applicants is bound by section 36 of the NCAT Act to cooperate with the Tribunal to give effect to the guiding principle of facilitating the quick, cheap and just resolution of the real issues in the proceedings. The manner in which the Applicants' case was put through their documentation fell short of full compliance with the guiding principle.
However, DYH was unrepresented and (it appeared) not legally assisted in preparing her written submissions and I took those matters into account in seeking to understand the Applicants' case in respect of both of the decisions under review.

[26]

Applicants' case as to the access decision

I understood DYH's case to be in essence that the access decision was wrong because the trial access arrangements proposed by the Public Guardian were inappropriate and not in PQX's best interests and that accordingly the Tribunal should set them aside, or remit them for further consideration by the Public Guardian or (as stated at the top of page 2 of the submission of 8 February 2021) that the decision should be varied as follows: "… Once (PQX) is in respite for 6 weeks, two weekly monitored visits (should be) scheduled with (PQX) and (DYH) and the grandson (EIV).
DYH contended that that would: "…provide a quicker remedy to preserve family, remove PQX from isolation, where she has the freedom to have visits from her cousins, friends, sister and other relatives.
Despite the problems noted above in fully understanding DYH's submissions, a fair distillation of the Applicants' grounds of objection to the Public Guardian's access proposal is as follows: 1. DYH "has no criminal record and no evidence of estrangement conflict or animosity" (submissions of 8 February 2021 page 1); 2. the arrangement proposed by the Public Guardian is harmful and damaging to DYH's well-being her, is an abuse of human rights and "goes against all humanity" (submissions of 2 February 2021, page 1 at [5], submissions of 8 February 2021, page 1); 3. the evidence produced by the Public Guardian has no substance; 4. the Public Guardian had dealt with these matters in a biased manner, which DYH asserts to have been "directed by PYY and LYZ" (submissions of 2 February 2021, foot page 2); 5. the Public Guardian's reliance on the Guardianship Act section 4 principles was not borne out by the facts; 6. DYH's submissions under the heading "Welfare and interests" on page 3 of the submissions of 2 February 2021 seem to assert that there is an ongoing threat to PQX's well-being from PYY and LYZ, that the Public Guardian displayed little sympathy when those allegations were related to it, that the Public Guardian had not supported meetings or visits with a different Public Guardian representative or by a Greek interpreter, that the Public Guardian had not responded properly or promptly to emails and finally that the Public Guardian's decision had an impact on the psychological well-being of DYH; and 7. the Public Guardian's access proposal was a "cruel, inhuman" decision, the effect of which was to "exploit and shame (DYH), like a common criminal". (Submissions of 2 February 2021, page 3 at [17].)

[27]

Case law tendered by Applicants

The Applicants also lodged the bundle of reasons for decision in matters before this Division and the Guardianship Division of the Tribunal, which involved guardianship orders decisions or decisions made by the Public Guardian as the guardian appointed under guardianship orders. The Applicants' written submissions referred in any detail to only one of those decisions: BJF and Anor v Public Guardian [2014] NSWCATAD 141. That matter involved an accommodation decision by the Public Guardian on behalf of CFA, a 95 year-old woman of Italian heritage. The Public Guardian's decision was that CFA should reside permanently in a nursing home and that decision was affirmed by the Tribunal.
I assumed that this case was referred to me by the Applicants because of some perceived similarity in the facts. CFA 's family members had a volatile relationship amongst themselves and it was asserted that CFA would be exposed to some traumatic family conflict if she resided at her home, in the care of 2 of her family members, as opposed to living as a permanent resident of a nursing home. (See, Reasons for Decision, 24 June 2014, at [15]).
The Public Guardian's decision in that case involved consideration of what was assessed as the volatile nature of CFA's family relationships. It observed that she was exposed to potentially traumatic family conflict which would be exacerbated if she were to return home. The Tribunal's decision, as I read the reasons for decision, largely accepted that that was so. The Tribunal affirmed the decision of the Public Guardian to place CFA in permanent nursing home accommodation. The decision was made on 16 September 2014.
There are some parallels between the facts in BJF and those here. For example, the current Applicants seem to make much of the fact that the responsible officer of the Public Guardian in that case was the same as in the present one. But there are significant distinctions between that case and the present one and some that do not support the present Applicants' position. For example, the Tribunal noted, with apparent disapproval, that the Public Guardian had placed insufficient emphasis on CFA's own wishes (Reasons for Decision 16.09.14 at [63]) and her welfare and interests (Reasons at [116]-[117]. In the present matter the Public Guardian has clearly considered both those elements.
On any proper analysis, the BJF case is of limited facility in deciding the present applications. The decision on any particular case depends on the particular Tribunal Panel's analysis of the particular facts at the time. Of course, facts and the application of the Section 4 principles to those facts, change over time. The BJF decision is of course not binding on me. I take it into account, but give it only very limited weight in my considerations, because it involved a different family and parties and is a decision of this Division of the Tribunal on the facts of that particular case, determined about 7 years ago.
The same comments as to the partial similarity of the facts , the basis on which I should take any case into account and consequently the weight I should give to earlier cases applies to each of the other reported cases referred to by the Applicants in the present matter. They were: EBR v Public Guardian [2020]; WS v NSW Trustee and Guardian [2011], AZV v Public Guardian [2014]; CDJ v Public Guardian [2015] , PZ v NSW Trustee and Guardian [2011] and the following decisions in the Guardianship Division: NQC [2019] NSWCATGD 24, NFK [2020] NSWCATGD 20 and CFM [2014] NSWCATGD 26.

[28]

Relevant authorities on the section 4 Principles and their application

The principles set out in section 4 of the Guardianship Act are clearly of substantial importance in determining the two present applications. It is therefore appropriate to deal with the leading authorities as to how those principles should be applied.
In WL v NSW Trustee and Guardian [2011] NSWADTAP 22 ("the WL Case"), the Administrative Decisions Tribunal Appeal Panel, on which Deputy President Hennessy presided, undertook a detailed analysis of the principles set out in section 4 of the Guardianship Act and observed, at [71], as follows: "Section 4 is more than an objects clause. Objects clauses articulate the intended purpose of the legislation and regard may be had to them to resolve uncertainty or ambiguity when interpreting and applying the remainder of the legislation: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (unreported, 9064 0127, 14 August 1996). The "principles clause" in the Guardianship Act not only articulates the intended objects of the Act, it requires any person exercising functions under that Act to observe those principles"
The Deputy President's analysis was cited with approval in a more recent consideration of section 4 by the Appeal Panel of this Tribunal in ZDU v ZDV [2017] NSWCATAP 197, where the presiding member was Deputy President Schyvens, the Divisional Head of the Guardianship Division of this Tribunal.
Four important aspects of the operation of the section 4 principles emerge from the WL Case and the leading Supreme Court case of P v NSW Trustee and Guardian [2015] NSWSC 579 ("P v NSW Trustee"). 1. In the WL Case the Tribunal noted that when exercising any function under the Guardianship Act a decision maker is bound to observe any relevant principle in section 4. That must apply with equal force to the Public Guardian in this case. 2. In the WL Case at [76] the Tribunal observed that the section 4 principles are not expressed in absolute terms and that phrases such as "as little as possible" and "as far as possible" make it clear that observing a particular principle does not mean that, where a discretion exists, the decision-maker must make a particular decision. The only gloss I would give to those observations is that although internally the section 4 principles are not expressed in absolute terms, it is clear that the principle in paragraph (a) is in a special category: the decision-make it is required to give consideration to the welfare and interests of subject person and that consideration must be the decision maker's paramount consideration. To put it another way, paragraph (a) is always "relevant". 3. In the WL Case at [75], the Tribunal confirmed that a relevant decision-maker is bound to observe any relevant principle in section 4 and may demonstrate observation of those principles either by referring to them expressly or by writing reasons for decision which demonstrate that all relevant principles have been observed. 4. In P v NSW Trustee Justice Lindsay, relying on the earlier case of Protective Commissioner v D [2004] NSWCA 216; (2004) 60 NSWLR 513 at 543 [167], confirmed that: "… the Guardianship Act should be construed beneficially, having regard to its protective character.

[32]

Family relationships and cultural and linguistic environment,

There is some persuasive weight to the Applicants' contentions that a change of PQX's accommodation to a care facility where Greek is spoken may facilitate her access to the family members who, in the Applicant's contention have expressed concern for her whilst preserving her cultural and linguistic environment. (There is indeed some evidence of this by way of letters and statements from members of PQX's extended family.)
But that does not itself make the decision the correct one.
Additionally, I cannot be reasonably satisfied that continuation of the accommodation status quo, which would occur if the Public Guardian's decision is upheld, would adversely affect PQX's family relationships. As the Public Guardian has asserted PQX has access from her home to some close members of the family. There are allegations of previous disruptive behaviour and an alleged assault by LYZ upon DYH, for which an Apprehended Violence Order was issued against him, but PQX was not the Person in Need of Protection under that order and there was nothing before me which indicated a current likelihood that PQX's relationship with LYZ and PYY would be prejudiced by implementation of the Public Guardian's accommodation decision.
Moreover a stated central purpose of the Public Guardian's decision was to facilitate renewed contact between mother and daughter (that is, PQX and DYH), provided that PQX wanted to see DYH and that trial access as proposed would: "…allow the opportunity to preserve (PQX's) relationships with all family members…who she wishes to see.."
Although it is asserted by the Applicants that there has been ongoing disruption to close family relationships and the many of those disruptions appear to have involved an active role by LYZ, it remains the case that current PQX's accommodation at home does preserve some of her family relationships. It cannot be the law that the section 4(e) principle requires decision-makers to ensure ongoing access of the person with a disability to all his or her family members.
I was not persuaded that allowing PQX to remain in the home would deprive her of her cultural and linguistic environment, even though those important environments might also be preserved in a Greek-language care facility.

[34]

The Public Guardian's case on accommodation

The Public Guardian's reasons for its accommodation decision set out, in some detail, how it reached its decision by reference to each of the relevant section 4 principles. They include reference to the importance of preserving PQX's family relationships, cultural and linguistic environment and the need to protect her from neglect, abuse or exploitation. But in addition, substantial attention is given to other relevant principles, being PQX's own views which reflects the principle in s4(d)), the need to preserve PQX's freedom of decision and action which is the principle in section 4(b), the need to encourage PQX, as far as possible, to lead a normal life in the community, which is the principle in section 4(c) and, significantly, as the paramount consideration, the welfare and interests of PQX, being the principle in section 4(a).
The Public Guardian's reasons reflect its exercise of a substantial analysis and a balancing of benefits and disadvantages of each of these principles. For example, in relation to PQX's own views, the Public Guardian contended that the fact that PQX has been deemed to lack capacity in decision-making does not diminish her right to indicate a preference as to where she wishes to live. By way of contrast, the Applicants' case as put by DYH was that that last-mentioned factor should be given minimal weight, simply because of PQX's established decision-making incapacity. That is an incorrect approach to the application of the principle. The Public Guardian records that PQX has consistently maintained a strong view that she does not wish to live anywhere other than her home. The Psychiatrist's report of her consultation with PQX in October 2020 confirms that.
The views of the disabled person are an essential component of any decision-making process of this sort and the need to take those views into consideration is not reduced where (as is commonly the case) the subject person has reduced decision-making ability.
The Public Guardian also cited some evidence of PQX seeking out and engaging in conversation with her neighbours and completing household tasks, as demonstrating the likelihood that her continued residence at her home would encourage her to live a normal life in the community.
Most significantly, the Public Guardian's reasons indicate a substantial analysis of PQX's welfare and interests, in response to the principle in section 4(a). As explained above, that constitutes the paramount consideration. The Public Guardian found that PQX's daughter PYY and her son LYZ provide formal supports to her in the home, that she is the recipient of a Level 3 ACAT funding package and is able to and does access formal services, including assistance with home cleaning and support in accessing the community. It relied on the Psychiatrist's report, which was to the effect that PQX's current living arrangements are suitable and that there appeared to be no need to move her into higher-level care.

[41]

(5) The Public Guardian's reliance on the section 4 principles is not borne out by the facts.

I find's assertion be completely unpersuasive for the following reasons.
In the Public Guardian's reasons for decision there is substantial discussion of the relevance of the paramount principle (that is, that PQX's welfare and interests should be the paramount consideration). Under that heading the Public Guardian confirmed that PQX has maintained a consistent view during the term of the current and previous guardianship orders, which is that she does not wish to have contact with DYH. As noted above, the Public Guardian's reason for proposing a trial access arrangement in the presence of an independent third-party care provider was to provide PQX with the opportunity to choose whether she has contact with DYH. So, the Public Guardian clearly viewed the intended trial access as a possible foundation for more regular access between PQX and members of her family including DYH.
I am satisfied that in doing this the Public Guardian adhered to the s4(a) principle of ensuring that PQX's welfare and interests are its paramount consideration.
The Public Guardian in its reasons for decision also discussed the relevance of the following s4 principles: freedom of decision and action, encouragement to live a normal life community, protection from neglect abuse and exploitation, self-reliance in personal domestic and financial affairs, family relationships and cultural and linguistic environments and, significantly the views of PQX herself.
In relation to the last of those principles the Public Guardian reported that PQX has consistently maintained a strong view that she does not wish to live anywhere other than her home and has become upset when the subject of access to others is discussed.
I accept that the trial access proposal was a genuine attempt by the Public Guardian to preserve the family relationships whilst taking PQX's own views into account.
I find that the Public Guardian's reliance on those factors was appropriate and, to answer the Applicants' assertion, that it was "borne out by the facts".

[53]

(4) Orders relating to operation and effect of power A review tribunal may, if satisfied that it would be in the best interests of the principal to do so or that it would better reflect the wishes of the principal, make any one or more of the following orders relating to the operation and effect of a power of attorney: (a) an order varying a term of, or a power conferred by, the power of attorney, (b) an order removing a person from office as an attorney, (c) an order appointing a substitute attorney to replace an attorney who has been removed from office by a review tribunal or who otherwise vacates the office, (d) an order reinstating a power of attorney that has lapsed by reason of any vacancy in the office of an attorney and appointing a substitute attorney to replace the attorney who vacated office, (e) an order directing or requiring any one or more of the following: (i) that an attorney furnish accounts and other information to the tribunal or to a person nominated by the tribunal, (ii) that an attorney lodge with the tribunal a copy of all records and accounts kept by the attorney of dealings and transactions made by the attorney under the power, (iii) that those records and accounts be audited by an auditor appointed by the tribunal and that a copy of the report of the auditor be furnished to the tribunal, (iv) that the attorney submit a plan of financial management to the tribunal for approval, (f) an order revoking all or part of the power of attorney, (g) such other orders as the review tribunal thinks fit. 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: 24 May 2021

DYH v Public Guardian

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