Holt & Anor v Protective Commissioner

The hearing

1. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]
2. Mr NDH did not participate in the hearing. Ms Z, the manager at the aged care facility, said that Mr NDH has a profound disability and is deaf and would become distressed if required to attempt to participate in the hearing, which he would not understand.
3. The Tribunal must ensure that it conducts its hearings in such a way as to extend procedural fairness to the parties. This includes a requirement that the parties must be given a reasonable opportunity to be heard, and to present their case.
4. The Tribunal is also required to follow principles set out in s 4 of the Guardianship Act 1987 (NSW) ('the Act'). These principles include that paramount importance should be given to the welfare and interests of a person with disabilities.
5. The Tribunal was satisfied that whilst it would be the interests of Mr NDH to participate in the hearing if he were able, his inability to effectively participate and the risk of distressing him was such that the Tribunal should proceed with the hearing in his absence.

What did the Tribunal have to decide?

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

• Is Mr NDH 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 NDH 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 Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he 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 the 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;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. A report dated 13 May 2013 compiled by a speech pathologist indicates that at that time Mr NDH was diagnosed with a profound hearing loss, cerebral palsy, and a moderate intellectual disability.
3. A report dated 24 November 2016 from Dr Y records that Mr NDH has cerebral palsy and deafness.
4. As noted above, Ms Z advised the Tribunal that Mr NDH has a profound intellectual disability and is deaf. In a letter to the Tribunal dated 23 January 2016, she describes Mr NDH as having cerebral palsy since birth as well as deafness and quadriplegia and as being unable to read and write.
5. A Health Professional Report Form dated 14 February 2017 compiled by a registered nurse at the aged care facility indicates that Mr NDH has a severe intellectual disability and is deaf, non-verbal, and unable to read or write.
6. Taking into account the evidence of the health and medical practitioners, the Tribunal is satisfied that Mr NDH has a disability which prevents him making important life decisions. He is, therefore, 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 QAH said that he made the application for guardianship because he believed that he needed to be a guardian to have input into Mr NDH's provisions under the National Disability Insurance Scheme (NDIS). He thought he might have been appointed as Mr NDH's nominee though upon checking his status had been described as "other" and not as "nominee". He said that he was advised that he would receive a copy of Mr NDH's NDIS plan, though this has not yet eventuated. He thought that the proposal to send the plan to his address was because that was the address provided for Mr NDH, not because he had been accepted as a nominee.

Issues related to the National Disability Insurance Scheme

Principles and objects of the NDIS

1. The objects of the NDIS are contained in s 3 of the National Disability Insurance Scheme Act 2013 (Cth) ('the NDIS Act') and include:

• supporting the independence and social and economic participation of people with disability;
• providing reasonable and necessary supports for participants;
• enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports and;
• giving effect to various international covenants and conventions, including the Convention on the Rights of Persons with Disabilities.

1. Section 4 contains a number of general principles to guide actions under the NDIS Act, which identify the rights of people with disability and ensure that people with disability are supported to exercise choice and control in their interactions with the NDIS.
2. In addition, s 5 contains separate principles that apply to people who may do acts or things on behalf of others under the NDIS Act. These include: 1. People with disability should be involved in decision-making processes that affect them, and where possible make decisions for themselves; 2. People with disability should be encouraged to engage in the life of the community; 3. The judgments and decisions that people with disability would have made for themselves should be taken into account; 4. The cultural and linguistic circumstances, and the gender, of people with disability should be taken into account; 5. the supportive relationships, friendships and connections with others of people with disability should be recognised.
3. People with disability are assumed under the NDIS Act, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives (s 17A(1), NDIS Act). People with disability will be supported in their dealings and communications with the National Disability Insurance Agency (NDIA) so that their capacity to exercise choice and control is maximised (s 17A(2), NDIS Act). The NDIS is to: 1. respect the interests of people with disability in exercising choice and control about matters that affect them; and 2. enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and 3. support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability (s 17A(3) NDIS Act).
4. The NDIA, which is responsible for delivering the NDIS, has an obligation to provide support and assistance (including financial assistance) to prospective participants and participants in relation to doing things or meeting obligations under the NDIS (s 6, NDIS Act).

Access to the NDIS - becoming a participant

1. Section 18 of the NDIS Act provides that a person may make an 'access request' to the NDIA to become a participant in the NDIS. There are no provisions in the NDIS Act relating to who may make an access request on behalf of a person who does not have the capacity to do so for themselves. The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Registered: 20 February 2017) state that 'a person, or someone who is able to act on their behalf, may make a request under the Act to become a participant in the NDIS launch...' (rule 2.1).
2. Up until September 2016, the NDIS Operational Guidelines were to the effect that an access request would only be complete if an NDIA officer had certified that the applicant had authority to sign the request. That authority was by way of appointment as the person's guardian or some other appointment as the person's representative. However, the September 2016 Operational Guidelines removed the requirement of being authorised by way of guardianship or otherwise as the person's representative.
3. Mr QAH said that he was involved with the aged care facility staff and with Mr NDH's day program providers in making the application for Mr NDH to participate in the NDIS. Ms Z said that in her experience there is usually no problem about the involvement of others in making an application to participate in the NDIS, but in her experience, once the plan and related funding are approved, there is a need for a guardian to manage the funds.
4. Mr QAH said that he had signed a document in relation to the NDIS but he was not certain what it was. On the information available to the Tribunal, it seems Mr NDH has been accepted into the scheme and a plan has been devised for him.

Plan management and the NDIS: nominees

1. The NDIS Act requires that the CEO of the NDIA must facilitate the preparation of a plan in accordance with the NDIS Rules for each participant in the NDIS (s 32, NDIS Act). The plan must include a statement of the participant's goals and aspirations and a statement of participant supports (s 33, NDIS Act). Section 31 contains the principles relating to plans, which include (amongst others): 1. The plan be individualised and directed by the participant; 2. Where relevant, consider the role of family, carers, and other significant persons; 3. Be underpinned by the right of the participant to exercise choice and control.
2. The plan must specify whether it will be managed, wholly or to a specific extent, by: 1. the participant; 2. a registered plan management provider; 3. the Agency; or 4. a plan nominee (ss 33(2) and 42(2), NDIS Act).
3. For the purposes of the NDIS Act, the CEO may appoint a plan nominee for a participant, either of the CEO's own motion or at the request of the participant (s 86(1), NDIS Act). The CEO must not appoint a nominee without the consent of the nominee and must take into account the wishes of the participant regarding the appointment (s 88(2), NDIS Act). The CEO must have regard to whether there is a person who, under a law of the Commonwealth or a State or Territory: 1. has guardianship of the participant; or 2. is a person appointed by a court, tribunal, board or panel (however described) who has power to make decisions for the participant and whose responsibilities in relation to the participant are relevant to the duties of a nominee (s 88(4), NDIS Act).
4. In addition to a plan nominee, a correspondence nominee may be appointed (s 87, NDIS Act). A correspondence nominee may do a range of acts on behalf of the participant, such as making requests to the NDIA for information and receiving notices on behalf of the participant (ss 81 and 82 of the NDIS Act). However, a correspondence nominee may not do any act relating to plan management (rule 3.9, National Disability Insurance Scheme (Nominees) Rules 2013 (Cth)). A person may be appointed as both a correspondence and a plan nominee (s 88(1), NDIS Act).
5. Rule 3.14 of the NDIS (Nominees) Rules provides that, when deciding whether to appoint a nominee by way of own motion, the CEO is to consult with the participant and have regard to the following: 1. whether the participant would be able to participate effectively in the NDIS without having a nominee appointed; 2. the principle that a nominee should be appointed only when necessary, as a last resort, and subject to appropriate safeguards; 3. whether the participant has a court-appointed decision-maker or a participant-appointed decision-maker; 4. whether the participant has supportive relationships, friendships or connections with others that could be: (a) relied on or strengthened to assist the participant to make their own decisions; or (b) improved by the appointment of an appropriate person as nominee; 5. (any relevant views of: (a) the participant; and (b) any person (including a carer) who assist the participant to manage their day-to-day activities and make decisions; and (c) any court-appointed decision-maker or participant-appointed decision-maker.
6. A plan nominee may do any act that may be done by a participant that relates to the preparation, review or replacement of a participant's plan or the management of the funding for supports under the plan (s 78(1), NDIS Act). A nominee is only to do an act if the nominee considers that the participant is not capable of, or not capable of being supported to do, the act (s 78(5), NDIS Act). More than one plan nominee may be appointed (s 86(6), NDIS Act).
7. The nominee has a number of duties to the participant under s 80 of the NDIS Act, including: 1. ascertaining the wishes of the participant in relation to any act; 2. ensuring that any act done by the nominee promotes the personal and social wellbeing of the participant; 3. supporting the participant to make the decision personally; 4. giving appropriate weight to the views of the participant; 5. informing the CEO of any acquired interest, pecuniary or otherwise, that may conflict with the role of nominee.
8. The nominee also has duties under the NDIS (Nominees) Rules: 1. To consult with any court-appointed decision maker or any personally appointed decision-maker and any other person who assists the participant to manage their day-to-day activities (rule 5.8). 2. To consult with any other nominee appointed under the NDIS (rule 5.9). 3. To develop the capacity of the participant (rule 5.10). 4. To avoid or manage conflicts of interest (rule 5.12).
9. When the Tribunal considered an application for guardianship made during the early stages of the NDIS (the matter of KCG [2014] NSWCATGD 7) Special Counsel for the NDIA submitted that at that stage there had been no nominees appointed under the scheme in NSW or Victoria and that: The NDIA would not formalise the role of a court appointed guardian or equivalent where (i) they are acting as a support and (ii) have not been made and nominee and (iii) the arrangement suits all parties. Such a body or person would be dealt with by the agency in the same way as any other person. The agency would take their views into account if they appear a significant party.
10. Special Counsel submitted in the KCG matter that the approach was consistent with the principles and objects of the NDIS and with Rule 3.4 of the NDIS (Nominee) Rules, which states: 3.4 It is only in the rare and exceptional cases that the CEO will find it necessary to appoint a nominee for a participant who has not requested that an appointment be made. In appointing a nominee in such circumstances, the CEO will have regard to be participant's wishes and the participant's circumstances (including their formal and informal support networks).

Guardianship orders and NDIS nominees: the need for an order

1. The Tribunal's view is that where important lifestyle decisions are required to be made on behalf of a person who lacks the requisite decision making capacity (and cannot be supported to make decisions for themselves), such as Mr NDH, it is appropriate that an independent substitute decision maker is appointed to undertake that responsibility. The NDIS nominee scheme is a substitute decision making scheme designed for people with disability like Mr NDH. As The Hon. Julia Gillard, then Prime Minister, stated in the second reading speech for the NDIS Bill on 29 November 2012: ...a nominee can be appointed to make decisions on behalf of a participant, while ensuring that the rights of participants are maintained and that nominees must consider the participant's wishes.
2. As the submissions of the Special Counsel in the KCG matter indicate, appointment of a person as guardian will not necessarily result in that person being appointed as a nominee, and a close family member will be consulted in the administration of the scheme.
3. Mr QAH was unclear as to what steps had been taken to have him appointed as Mr NDH's nominee and said that he has not been successful in obtaining clear guidance relating to this matter from the NDIA staff.
4. The Tribunal understands that an NDIS plan has been approved for Mr NDH and services have been identified, with the involvement of Mr QAH and Mr QAH has been advised that he will receive a copy of that plan. The Tribunal was of the view that at this stage, if Mr QAH believes it appropriate that he have a more formal role in the administration of Mr NDH's NDIS plan then it is appropriate that he pursue an application to be appointed as Mr NDH's nominee. Such an appointment may have longer term utility than a guardianship appointment, which is time limited and would need to be reviewed, usually at the end of 12 months for an initial order.
5. However, as noted below, the Tribunal was of the view that for reasons associated with the NDIS, it is necessary that Mr NDH now have a financial manager. As the person appointed to that role the Tribunal understands that Mr QAH will be in a position to monitor payments made to Mr NDH's services providers under his NDIS plan.
6. Taking all of these matters into account the Tribunal decided to dismiss the application for guardianship.

What did the Tribunal have to decide?

1. The questions to be considered by the Tribunal are:

• Is Mr NDH incapable of managing his affairs?
• Is there a need for another person to manage Mr NDH's affairs and is it in his best interests for a financial management order to be made?
• If so, who should be appointed financial manager?

Is Mr NDH incapable of managing his affairs?

1. The test for determining a person's capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]): Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests? … [A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.
2. As can be seen in the preceding sections of these Reasons, the Tribunal considered issues related to Mr NDH's health and cognitive capacity in the context of considering the application for guardianship. The Tribunal also took those matters into account in considering whether he is able to manage his financial affairs.
3. The Tribunal was satisfied that the nature and extent of his disabilities are such that he is not able to manage his day to day affairs or to make or implement financial plans and he is, therefore, not able to manage his affairs.

Is there a need for a financial management order and is it in Mr NDH's best interest that a financial management order be made?

1. Ms Z said that under current arrangements Mr NDH's pension is paid to the aged care facility where his fees and other expenses are deducted and the balance kept in a trust account for him.
2. In his application Mr QAH states that there is a need for an order because Mr NDH has no will and also because the NDIS plan will make it necessary to have formal financial structures in place for Mr NDH.
3. The Tribunal explained that a financial manager is not able to make will on behalf of the protected person.
4. The Tribunal was of the view that it is also likely that under Mr NDH's NDIS plan, funds will be paid directly to the service providers and would not necessitate payment into an account in the name of Mr NDH. However, there may be other requirements under the NDIS for Mr NDH to have a bank account. In the KCG matter, Special Counsel for the NDIS confirmed that all NDIS participants are required to open a bank account.
5. In the KCG matter, the NSW Trustee and Guardian alerted the Tribunal to the possibility that funds provided under the NDIS might have an effect on Mr NDH's Centrelink pension. The Tribunal was concerned that in the absence of a financial management order there might be no way of monitoring the effect of the NDIS on Mr NDH's pension.
6. The Tribunal was of the view that it is necessary that a financial manager be appointed to facilitate monitoring of the effects of the NDIS on Mr NDH's financial position and to liaise as necessary with the NDIA and Centrelink about these affairs. The Tribunal understands that Mr NDH's financial manager would have access to his "myGov" account and to its "NDIS portal" which will allow monitoring of payments to the organisations providing services to Mr NDH under the NDIS.
7. The Tribunal was satisfied that it is in the best interests of Mr NDH to make a financial management order so that his pension and NDIS payments can be monitored.

Who should be appointed as financial manager?

1. In appointing a financial manager, as in making all other orders under the Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Act.
2. Section 25M of the Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian.
3. In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court's broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.
4. On the side of the then Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation, and the security provided to an estate against loss or damage.
5. The advantages of the appointment of a family member were more economic management of smaller estates (that is, freedom from fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers.
6. Mr QAH proposed that he be appointed as the financial manager. He said that he has experience of financial management resulting from running his own business as an electrical engineer, has never been bankrupt and has never been convicted of a dishonesty offence. He also indicated that he was familiar with the requirements of a financial manager and understood the role of the NSW Trustee and Guardian with respect to private financial managers.
7. Ms Z said that in the two years she has managed the aged care facility Mr QAH has attended case conferences relating to the care of Mr NDH and has acted to improve Mr NDH's quality of life, including augmenting his trust account when necessary. She said that she believes that Mr NDH and Mr QAH share a good relationship and Mr NDH appears to trust and have faith in Mr QAH.
8. Taking all of this evidence into account the Tribunal was satisfied that Mr QAH is a suitable person to be appointed as financial manager for Mr NDH subject to the authorities and directions of the NSW Trustee and Guardian.

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: 27 July 2017