IF v IG

NCAT Guardianship|2016-04-08

What the Tribunal decided

The Tribunal reviewed the previous guardianship order for Mr MNL made on 4 February 2015 and renewed it for a period of three years and varied as follows: The Public Guardian was appointed as guardian with authority to make decisions for him about accommodation, health care, access to services and access to others.
The Tribunal committed the estate of Mr MNL to the management of the NSW Trustee and Guardian.

Background

Mr MNL is 20 years old and primarily resides at regional NSW in NSW with his father, Mr KZL and Ms PBT. He also spends a number of nights each week with his mother, Ms TAL, in regional NSW.
On 4 February 2015, the Tribunal appointed the Public Guardian as Mr MNL's guardian to make decisions for him about his accommodation and services and about his access to others and the conditions of that access.
On 8 February 2015, the Tribunal received an application from Ms TAL seeking a financial management order for Mr MNL.

What did the Tribunal have to decide?

On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.
The questions to be considered by the Tribunal are:

Is Mr MNL someone for whom the Tribunal could make an order because he continues to have a disability which prevents him from being able to make important life decisions?
Should the Tribunal make a further guardianship order and if so, what order should be made?
Who should be the guardian?
How long should the order last?

Is Mr MNL someone for whom the Tribunal could make a further order because he continues to have a disability which prevents him from being able to make important life decisions?

Section 14 of the Guardianship Act 1987 (NSW) 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 Guardianship 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 Guardianship Act).
When the previous order was made, the Tribunal accepted evidence that Mr MNL has a severe intellectual disability and autism and was non-verbal. The Tribunal found that as a result of his conditions Mr MNL had a disability being and was unable to make important life decisions.
There is no new evidence before the Tribunal in relation to this issue and no-one contended that Mr MNL has ceased to have a disability as referred to in the preceding paragraph.
Taking into account the previous decision of the Tribunal and the lack of anymore recent evidence to the contrary, the Tribunal is satisfied that Mr MNL continues to have a disability which prevents him making important life decisions. He is, therefore, a person for whom the Tribunal could make a further guardianship order.

Should the Tribunal make a further guardianship order and if so, what order should be made?

The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further 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) of the Guardianship Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).
In a report to the Tribunal dated 10 February 2016, Ms Hannah Morgan, Senior Guardian, expresses the view that the order should be renewed and varied so the guardian is provided with the function of making decisions about Mr MNL's access to others only. In support of her view she provides information and opinion to the following effect: 1. In her view, Mr MNL's current accommodation with his father and Ms PBT is appropriate and meeting his needs and there is no need for an accommodation decision. 2. Mr MNL attends a day program four days each week. His father has arranged for a private speech therapist to provide communication support via an iPad and there is no need for decision about other services. 3. The Public Guardian has made an access decision which was under review at the time of the hearing. There is a high-level of conflict between Mr MNL's parents and there was a continuing need to make decisions about his access to his mother.
In her application seeking a financial management order, Ms TAL makes statements to the following effect: 1. Mr MNL resides with her five nights per week including every second weekend. 2. She believes that Mr MNL's community access funding is now utilised to provide care for Mr MNL whilst his father is at work and as a result, he has less opportunity to socialise. 3. Mr MNL has not been attending medical assessment services in Sydney and services that have previously assisted Mr MNL, such as speech therapy have been discontinued. 4. She is not provided with information about Mr MNL's health status and there is no process by which she is able to relay important information about his health. 5. The communication book that was important for recording Mr MNL's daily movements, health, mood, likes, and dislikes has been discontinued and that was an important tool for providing essential information for his health and wellbeing.
The Tribunal spoke by telephone with Mr QAQ, the brother of Mr MNL, who said that when he lived with Mr KZL the latter was violent and assaulted him including punching him in the face when he was 13 years old. He said that previously his father was not interested in caring for Mr MNL and that his current interest is related to his current circumstances, including that Ms PBT has a daughter with a disability.
Mr KZL denied the claims made by Mr QAQ.
Having heard the concerns expressed by Mr QAQ and Ms TAL about Mr MNL's accommodation arrangements, Ms Sylvia Heidenreich, the Duty Guardian with the Office of the Public Guardian, expressed the view that there is an ongoing need for a substitute decision-maker regarding Mr MNL's accommodation.
Mr KZL and Ms TAL agreed that there is a continuing need for a substitute decision-maker regarding accommodation.
During the hearing there was considerable discussion regarding Mr MNL's health care planning. Ms TAL said that she used take Mr MNL to a diagnostic centre in Sydney where he was assessed by a sleep doctor and a neurologist who was also an expert in autism. She said that she believes he needs to attend the diagnostic centre every three months. She said that appointments she had made have been missed when Mr MNL was in the care of his father and that if three appointments were missed sequentially his access to the Centre would be cancelled.
Mr KZL said that he took Mr MNL to the diagnostic centre on one occasion and where the neurologist asked about medication and Mr MNL's seizure history. Mr KZL formed the view that as Mr MNL's seizures have levelled out, it was best to leave things as they were. He said that about two weeks ago he saw a different doctor who altered Mr MNL's medication regime, and that he has been taking Mr MNL to a neurologist in Canberra.
Taking into account that Mr MNL's parents have different views about appropriate health care planning for Mr MNL and also taking into account the conflict between Mr MNL's parents, the Tribunal was satisfied that it was in his best interests to appoint a substitute decision-maker regarding the heath care.
Ms TAL and Mr KZL agreed that it is appropriate that whichever parent has the care of Mr MNL when he received medical or dental treatment is the person who should consent to the treatment as his 'person responsible'.
In taking into account the effect of a guardianship order on Mr MNL's family relationships the Tribunal was satisfied that the order has not thus far adversely affected his relationships with his family and there was no evidence that it is likely to do so in the future.
Taking all of these matters into consideration, the Tribunal decided that the orders should be renewed and varied so that a guardian was appointed to make decisions for Mr MNL about his accommodation, services, health care, and his access to others and the conditions of that access.

Who should be appointed as the guardian?

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 Guardianship Act).
There was no private person proposed to be appointed as guardian, and taking into account that one of the functions of the guardian is make decisions about Mr MNL's access to his parents the tribunal was of the view that in any case, it would not be appropriate for one of his parents to be appointed to that role.
There being no suitable private guardian, the Tribunal appointed the Public Guardian.

How long should the order last?

On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made.
The Tribunal decided to make the order for three years because it was satisfied that Mr MNL's disability is permanent, and that there will be an ongoing need for decisions to be made about the matters allocated to the guardian.

What did the Tribunal have to decide?

The questions to be considered by the Tribunal are:

Is Mr MNL incapable of managing his affairs?
Is there a need for another person to manage Mr MNL'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 MNL incapable of managing his affairs?

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.
As noted in the section of these Reasons dealing with the review of the guardianship order, Mr MNL has severe intellectual disability and autism and he is non-verbal.
It was not contended by anyone at the hearing that he is able to manage his financial affairs.
Taking into account the nature and extent of his disabilities, the Tribunal was satisfied that Mr MNL is unable to manage his financial affairs.

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

In her application and oral evidence Ms TAL contended that whilst Mr MNL spends five out of every 14 days with her, she is not allocated any funds from his Disability Support Pension.
Mr KZL said that Mr MNL receives a pension $421.50 per fortnight and that he pays $100 per week for each of food and rent, so that he has only $21.50 in unexpended funds. He said that there is no money to give to Ms TAL. He also said that when Mr MNL came to live with him it was necessary to buy him essential items such as a bed and clothes as well as a television.
Mr KZL said that Mr MNL does not have a bank account or any savings and that his pension is paid into Mr KZL's bank account.
Mr KZL said that in his opinion there is no need to appoint a financial manager because he gives Mr MNL his money.
The Tribunal was of the view that: 1. Mr MNL will soon be entitled to an increased Disability Support Pension and at that time he should have access to some discretionary funds. 2. It is appropriate that Ms TAL be provided with funds from Mr MNL's pension in proportion to the time he spends with her so that his lifestyle can be maintained when he is with his mother. 3. Taking into account the conflict between Mr KZL and Ms TAL, there is a need for an independent person to make decisions about any allocation of funds to each of them from Mr MNL's pension. 4. It is in the best interests of Mr MNL that his funds are banked into his own account and that he has some independence regarding his funds, especially when his pension increases 5. Once Mr MNL has access to his own funds, he could be provided with some training in how to manage small amounts of his own money.
Taking all of these matters into account the Tribunal is satisfied that it is necessary to appoint a person to manage Mr MNL's affairs and it is in his best interests to make a financial management order.

Who should be appointed as financial manager?

In appointing a financial manager, as in making all other orders under the Guardianship 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 Guardianship Act.
Section 25M of the Guardianship 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.
There was no private financial manager proposed and the Tribunal was satisfied that the estate of for Mr MNL should be committed to management by 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: 20 December 2018

At a glance

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Judgment (13 paragraphs)

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