IF v IG

NCAT Guardianship|2016-10-20|Before: Dr J

WHAT THE TRIBUNAL DECIDED

The Tribunal dismissed the application made by Ms KAX for a guardianship order for Miss LFR. AND
The Tribunal dismissed the application made by Ms KAX for a financial management order for Miss LFR.

Background

Miss LFR is a 35-year-old woman who resides with her mother and primary carer, Ms KAX in regional NSW. Her father, Mr HVQ resides in regional NSW.
Miss LFR is reported to have severe intellectual and physical disability.
On 18 July 2016, the Tribunal received an application for a guardianship and financial management order from Ms KAX. In her application, Ms KAX states that since the introduction of the National Disability Insurance Scheme (NDIS) she is required to set up a bank account in Miss LFR's name. She has been unable to do this as she has no legal authority. A guardian is said to be required as she has had some previous difficulty in others accepting her authority to make decisions on behalf of Miss LFR.

What did the Tribunal have to decide?

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

Is Miss LFR someone for whom the Tribunal could make an order because she has a disability which prevents her 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 Miss LFR someone for whom the Tribunal could make an order because she has a disability which prevents her 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).
The Tribunal was provided with a report of Dr Z, General Practitioner, dated 28 June 2016. Dr Z states that Miss LFR has been a patient of hers for 16 years. She notes that Miss LFR is severely intellectually and physically disabled. She says Miss LFR is unable to manage her health, accommodation, or finances.
A copy of Miss LFR's management plan for Dr Z's medical practice was also considered by the Tribunal. This indicates Miss LFR has Angelman syndrome together with epilepsy, developmental disability, depression, and behavioural problems. Her current medication is noted to include Epilim for seizure control.
There was no dispute by any of the participants at the hearing that Miss LFR lacks capacity to make informed lifestyle decisions.
It was evident to the Tribunal through its interactions with Miss LFR that due to her intellectual disability, she 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 Dr Z. This evidence and the Tribunal's own interactions with Miss LFR satisfied the Tribunal that Miss LFR has a disability which prevents her making important life decisions. She 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?

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 Miss LFR's views about the application due to her severe intellectual disability.
Ms KAX said Miss LFR continues to reside with her in a Housing NSW property which has been modified to meet Miss LFR's needs. There are no changes planned to Miss LFR's accommodation.
Ms KAX said she has been able to organise services for Miss LFR to date without any difficulty. She is generally accepted as Miss LFR's person responsible and Miss LFR's treating doctors and other health professionals are happy to liaise and consult with her about issues regarding Miss LFR's health. Ms KAX said there have been a few occasions when staff at hospitals have questioned her authority to be involved in decision making on behalf of Miss LFR, possibly because she has a different surname to Miss LFR. Ms KAX said Miss LFR will require ongoing medical treatment for her chronic medical conditions which include epilepsy and behavioural problems with anxiety.
Ms KAX said that Miss LFR has had an assessment under the NDIS and a plan was implemented for her on 24 September 2016. Ms KAX has been able to negotiate and advocate with NDIS representatives on behalf of Miss LFR in relation to the development of the NDIS plan. A service provider has been chosen for Miss LFR. Ms KAX is satisfied with this provider.
Mr HVQ, who is Miss LFR's father, said he is supportive of Ms KAX's involvement in advocating on behalf of Miss LFR.
Ms Y, Support Facilitator at the service provider attended the hearing. She agreed with Ms KAX's evidence that to date the implementation of the NDIS plan for Ms KAX has gone smoothly. Consistent with the evidence of Mr HVQ she said Ms KAX has been an effective advocate for Miss LFR. Her organisation has been able to communicate readily with Ms KAX about any issues that have arisen for Miss LFR.
Based on all of this evidence, 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 Miss LFR that cannot be made informally. The Tribunal saw it as practicable for services to be provided to Miss LFR without the need for a guardianship order.
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 KAX has been a passionate and committed advocate on behalf of Miss LFR over the years and continues to fulfil this role. 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 Miss LFR's treating doctors consider she is not able to give informed consent to any treatment she requires that Ms KAX can give consent on her behalf as her person responsible under the Act. If Ms KAX is not available, Mr HVQ could do so.
Accordingly, the Tribunal dismissed the application for a guardianship order. If Miss LFR's circumstances change it is open to any person with a genuine concern for her welfare to bring a further application to the Tribunal.

What did the Tribunal have to decide?

The questions to be considered by the Tribunal are:

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

Is Miss LFR incapable of managing her affairs?

The test for whether someone is incapable of managing their financial affairs is set out in a number of New South Wales Supreme Court cases. As a result of these authorities, the Tribunal will look to the functionality of management capacity of the person concerned rather than their mental capacity or the particular reasons for their incapacity for self-management. It will look at the actual assets of the person concerned, how they are proposing to manage their ordinary affairs of living, whether they can look after their assets and what they are proposing to do with them.
The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at [86]). See Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [20].
There was no dispute in this matter that Miss LFR is incapable of managing her financial affairs.
The Tribunal considered evidence concerning Miss LFR's health and ability generally in the context of the application for a guardianship order. The clinical evidence available to the Tribunal demonstrated that Miss LFR's lack of decision-making ability extended to decisions concerning her financial affairs. The Tribunal is satisfied based on all this evidence that Miss LFR is incapable of managing her financial affairs. The decision at the hearing turned on whether there was a need and it was in Miss LFR's best interests that an order be made.

Is there a need for a financial management order and is it in Miss LFR's best interests that an order be made?

Miss LFR was unable to express her views about the application due to her severe intellectual disability.
Ms KAX told the Tribunal that the principal reasons she had made the application to be appointed as financial manager for Miss LFR were firstly, she had been told she would need to open an account in Miss LFR's name which she is unable to do as she has no legal authority. Secondly, she said she would like to have the Housing NSW lease on the property in which she and Miss LFR live, changed to add Miss LFR's name to the lease.
Following discussion with members of the Tribunal and Ms Y from the service provider, Ms KAX acknowledged that these issues do not require the appointment of a financial manager. As set out earlier in these reasons, as Miss LFR's nominee for the NDIS, Ms KAX does not require an order to manage funding under the NDIS.
Following discussion with Ms Y, who has considerable experience in relation to Housing NSW leases, Ms KAX said it appeared it would not be advisable to re-negotiate the terms of the lease, including having Miss LFR named as joint lessee, as the terms of a re-negotiated lease could be less favourable than the current terms.
The Tribunal was satisfied there were no other issues which would mean there was a need or that it would be in Miss LFR's best interests to appoint a financial manager. The Tribunal therefore dismissed the application for a financial management order.
As with guardianship issues, if Miss LFR's circumstances change, Miss LFR could consider making a further application to the Tribunal.

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

At a glance

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Judgment (10 paragraphs)

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Legislation Cited (3)

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