IF v IG

Is Mr LNS 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?

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 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 (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).
There was no dispute in this matter that Mr LNS lacks capacity to make informed lifestyle decisions. The medical evidence which is set out below was consistent that he has an intellectual disability of moderate severity.
A Health Professional Report Form completed by Dr Z on 7 November 2016 was provided to the Tribunal. Dr Z has been Mr LNS's general practitioner for eight and a half years. Dr Z says Mr LNS has a moderate intellectual disability due to perinatal hypoxic encephalopathy. He also says Mr LNS has autism. In Dr Z's opinion, Mr LNS lacks capacity to make informed decisions about his accommodation, health care medical treatment, and financial affairs.
Also in evidence was a report of Mr Y, Consultant Haematologist at the Nepean Hospital, dated 26 August 2015. Mr Y's report confirms Mr LNS's diagnosis of hypoxic brain damage at birth with resulting developmental delay. He notes Mr LNS takes Carbamazepine for seizure control.
It was evident to the Tribunal through its interactions with Mr LNS that due to his intellectual disability, he was unable to understand the purpose of the hearing or the impact of possible orders the Tribunal could make.
The Tribunal accepted the uncontested evidence of the medical practitioners referred to above. This evidence and the Tribunal's own interactions with Mr LNS satisfied the Tribunal that Mr LNS has a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.
The decision at the hearing turned on whether there was a current need for a guardianship order.

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

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.
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).
The Tribunal was not able to obtain Mr LNS's views about the application due to his intellectual disability.
Ms KGX said Mr LNS continues to reside with her and her daughter, Miss CPT. There are no changes planned to Mr LNS's accommodation even though he has recently turned 18 and is no longer in the care of the Minister. Ms KGX said she would like Mr LNS to stay with her permanently. She said he is very happy and settled living with her and her family as he has since he was an infant.
Ms KGX said she is generally accepted as Mr LNS's person responsible and Mr LNS's treating doctors and other health professionals are happy to liaise and consult with her about issues regarding Mr LNS's health. Ms KGX said Mr LNS will require ongoing medical treatment for his chronic medical conditions which include epilepsy, for which he takes Carbamazepine for seizure control.
Ms KGX said Mr LNS has had an assessment under the NDIS and a plan has been implemented. She thought she would require a guardianship order in order to continue to be able to make decisions on Mr LNS's behalf now that he has turned 18. In particular, she wants to be recognised by his new service provider as his decision maker and be able to sign a services contract with them.
Miss CPT said this was also her understanding from discussions she has had with staff at the new service provider.
The Tribunal telephoned the Manager at the new service provider. She was able to confirm that if the NDIS accept a person's family member or carer as a nominee then her organisation would also recognise that person as being able to sign the services contract with the new service provider.
Ms NXQ, the applicant, said Ms KGX has been an effective advocate for Mr LNS. Her organisation has been able to communicate readily with Ms KGX about any issues that have arisen for Mr LNS.
The Tribunal has made clear in a number of recent decisions including KTT [2014] NSWCATGD 6 and HKO [2016] NSWCATGD 14, that where there is someone available such as a family member or carer to become involved as a person's nominee under the NDIS, then there is usually no need for the appointment of a guardian for the purpose of dealing with issues such as preparation, review or replacement of a participant's plan or the management of funding for supports under the plan.
It was clear to the Tribunal from the evidence given by all participants, that Ms KGX has been a committed, effective advocate on behalf of Mr LNS over the years and continues to fulfil this role. Based on all of the evidence provided, the Tribunal decided not to make a guardianship order. The undisputed evidence is that there are no current accommodation or services decisions to be made for Mr LNS that cannot be made informally. The Tribunal saw it as practicable for services to be provided to Mr LNS without the need for a guardianship order.
There is no evidence of a need for a guardian to have either a health care or medical and dental consent function. The Tribunal is satisfied that if Mr LNS's treating doctors consider he is not able to give informed consent to any treatment he requires, that Ms KGX can give consent on his behalf as his "person responsible" under the Act. If Ms KGX is not available, Miss CPT could do so.
Accordingly, the Tribunal dismissed the application for a guardianship order. If Mr LNS's circumstances change it is open to any person with a genuine concern for his welfare to bring a further application to the Tribunal.

At a glance

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Judgment (7 paragraphs)

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Legislation Cited (3)

Cases Cited (2)