KVI [2017] NSWCATGD 3

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.]

What did the Tribunal have to decide?

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

• Is Mr KVI 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 KVI 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 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).
2. The Tribunal had before it professional evidence, including a report of a Provisional Psychologist dated 23 September 2014, reports of Dr Z, Consultant Psychiatrist, dated 11 June 2016 and 11 October 2016, a report of a general practitioner dated 29 July 2013, a report of a Team Leader at a disability service provider, and a report of Ms Y from another disability service provider, dated 31 October 2016.
3. Mr KVI has diagnoses of Asperger's Syndrome and developmental disability. According to the reports of Dr Z, Mr KVI's current symptomatology and functioning is consistent with moderate to severe developmental disability. The evidence indicates that Mr KVI participated in special schooling as a child and has been formally assessed as requiring extensive support to assist him with his day-to-day functioning and activities of daily living.
4. The Tribunal had the opportunity to observe Mr KVI during the course of the Tribunal hearing. He presents very well and is articulate and responsive to questions. However, the professional opinion is both comprehensive and consistent, indicating clearly that Mr KVI's disability significantly affects his decision-making capacity and level of functioning. While Mr KVI lives in his own home, he has required, and continues to requires, considerable support to assist him with his activities of daily living. On all of the material before it, the Tribunal is satisfied that Mr KVI has a disability which prevents him making important life decisions. He 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?

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. At present, Mr KVI works two days a week in disability employment. He attends art activity each Wednesday and has a National Disability Insurance Scheme (NDIS) coordinator of supports, Ms Y, in relation to his NDIS-funded activities. Mr KVI requires support and assistance to maintain his independent living. This includes assistance with cleaning, shopping, meal preparation and budgeting.
4. Mr KVI has contact with his father, Mr SWK. He is also in regular contact with his mother, Ms KZN, and stepfather, Mr QNJ. Ms KZN is involved in all major decisions for Mr KVI and is responsible for the coordination of his affairs, including the oversight of Mr KVI's health and medical care. In this regard, the Tribunal was informed that Mr KVI has physical health concerns and is at risk of diabetes, which may well become more problematic in the future.
5. Ms KZN gave evidence of the concerns that have arisen particularly as new opportunities and choices for service provision have arisen as a result of the NDIS. Whilst Ms KZN, as the NDIS plan nominee, should be consulted about all major decisions about services for Mr KVI, in recent times she has discovered that service providers have approached Mr KVI without her permission or approval. Ms KZN is concerned about persons seeking consent from Mr KVI without a full and proper appreciation of the extent of his disabilities. Ms KZN believes that this situation will continue to occur due to Mr KVI's very good presentation.
6. Ms KZN also expressed concern for Mr KVI's vulnerability in the community. Although supportive of Mr KVI continuing to live independently, she is aware of his susceptibility to the influence of others. Ms KZN told the Tribunal that Mr KVI is easily befriended and does not have the capacity to recognise relationships and associations that may be counter to his best interests. Ms KZN referred to incidents in the past where police have had to be involved and persons have been on Mr KVI's premises without authority.
7. In addition, Ms KZN believes that consideration may need to be given to a change in Mr KVI's accommodation in the near future. Ms KZN and Mr QNJ have contributed financially to the property in which Mr KVI lives. Mr KVI is the sole owner of the property as reflected on the title. The area in which the property is located is prone to flooding, and a neighbouring property was very recently flooded. The nature of the flooding risk may require remedial action and/or a move to alternative accommodation.
8. Ms KZN seeks to be appointed as her son's guardian to provide formal authority to make decisions on Mr KVI's behalf and to advocate for him in his best interests.
9. Mr KVI attended the Tribunal hearing in person. Whist the extent of Mr KVI's comprehension of the concept of guardianship and the issues being discussed was not clear, he was able to indicate that he was happy for his mother and Mr QNJ to be appointed as his guardians.

Tribunal consideration

1. In coming to its decision, the Tribunal took into account all of the evidence, both oral and documentary. It also took into account the submissions of the parties and participants, as well as the important principles set out above.
2. On balance, the Tribunal was satisfied that there is need for a guardianship order and it is in Mr KVI's best interests that a guardianship order be made. The Tribunal accepts that Mr KVI's family has encountered challenges in making decisions on his behalf. There are ongoing decisions to be made about Mr KVI's accommodation and services in light of the environmental factors relevant to his property, as well as the choices and opportunities brought about by the NDIS. The Tribunal formed the view that the authority conveyed by a guardianship order would enhance the ability of Mr KVI's family to make important lifestyle decisions for Mr KVI in his best interests.
3. Moreover, the Tribunal considered that the making of a guardianship order would not be unduly restrictive of Mr KVI. In this regard, due to his disabilities Mr KVI is not able to fully advocate for himself. His presentation belies the extent of his incapacity, and this exposes him to the risk of decisions being made contrary to his best interests.
4. Accordingly, the Tribunal was satisfied that a guardianship order should be made.

What decision making functions should be included in the order?

1. The Tribunal finds that the guardian's functions should extend to decision making with respect to accommodation and services, both of which are likely to arise imminently and into the future for Mr KVI. In addition, in order to make properly informed decisions for Mr KVI and noting the severity and complexity of his disabilities, it will be important for the guardian to have regard to Mr KVI's health care and be able to liaise with the health professionals and make informed decisions about his treatment as required.
2. Accordingly, the Tribunal was satisfied that the guardianship order should include the functions of accommodation, services, health care, and medical and dental treatment.

Who should be the guardian?

1. Ms KZN seeks that she and Mr QNJ be appointed as Mr KVI's guardians. Ms KZN is concerned that there should be proper arrangements in place in the event that she is not available to act. As a result, she also seeks the appointment of Mr QNJ, who is actively involved in Mr KVI's affairs.
2. The Tribunal notes that prior to the scheduled hearing, Ms KZN contacted Mr SWK informing him of her application for orders, the reasons for doing so, and the nomination of herself and Mr QNJ as guardians. Mr SWK subsequently expressed his support for Ms KZN's application.
3. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He/she must: 1. have a personality generally compatible with the personality of the person under guardianship; 2. have no undue conflict of interest (particularly financial) with those of the person; and 3. be able and willing to exercise the functions of the order.
4. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep, and Re B [2011] NSWSC 1075, at [66]).
5. In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.
6. 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 Act).
7. It is evident that Ms KZN and Mr QNJ love and care deeply for Mr KVI. They have demonstrated an ability to work collaboratively with the health professionals and service providers involved in Mr KVI's care, and are strong advocates for his rights and interests. It is evident that Mr KVI welcomes, and benefits from, the active involvement of Ms KZN and Mr QNJ in his life.
8. On the evidence before it, the Tribunal was satisfied that Ms KZN and Mr QNJ meet the requirements to be appointed as guardian and alternative guardian respectively for Mr KVI.

How long should the order last?

1. An initial guardianship order can be made for a period of up to one year from the date on which it was made. The Tribunal decided to make an order of 12 months to enable important decisions to be made during this period.

What did the Tribunal have to decide?

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

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

1. The Tribunal heard evidence about Mr KVI's disabilities in relation to the guardianship application as noted above. That evidence is also relevant to the financial management application and does not need to be restated. Of particular relevance is the report of Ms Y dated 31 October 2016, in which she refers to Mr KVI's tendency to withdraw all available funds without regard to the need to pay bills and expenses.
2. The evidence indicates that Mr KVI is dependent on his mother and service providers to assist in the management of his financial and legal affairs and he is not able to undertake those tasks independently.
3. Having regard to the material before it, and noting the size of Mr KVI's estate which includes a property, the Tribunal finds that Mr KVI is not capable of managing his affairs.

Is it in Mr KVI's best interest that a financial management order be made?

1. Mr KVI receives a disability support pension and wages from supported employment. Those payments are deposited into an account held jointly by Mr KVI and Ms KZN. Ms KZN has in place direct debit arrangements for the payment of certain bills. Ms KZN is able to make decisions about the amount of funds to which Mr KVI is able to access from the bank account. The property in which Mr KVI lives has been paid off in full by his family.
2. On the one hand, the current informal arrangements in place in relation to Mr KVI's finances are working well. However, Ms KZN and Mr QNJ are concerned about Mr KVI's vulnerability to financial exploitation and abuse; a concern which is also shared by Ms Y.
3. In addition, Ms KZN told the Tribunal that there may well be a need to make decisions about Mr KVI's property in the near future. This will require liaison with the relevant insurance company and local council in relation to the flooding issues. It may also require liaison with real estate agents in the event the property is required to be sold. Such actions will necessitate the signing of documents (including legal agreements) on Mr KVI's behalf, as well as the engagement of professional advice.
4. On all of the evidence before it, the Tribunal was satisfied that there is a need to appoint someone to manage Mr KVI's affairs and it is in his best interests that a financial management order be made.

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. The Tribunal notes that Ms KZN has been managing Mr KVI' affairs for all of Mr KVI's life. She is prepared to continue to do so and also to formalise her role. She seeks to be appointed as financial manager jointly and severally with Mr QNJ, noting that there are periods of time when she will be unavailable to act as she travels overseas to visit her other son.
4. Mr KVI expressed support for the appointment of Ms KZN and Mr QNJ as his financial managers.
5. The Tribunal finds that both Ms KZN and Mr QNJ have demonstrated their ability to make decisions in Mr KVI's best interests. They have shown an enduring concern for his welfare and have acted protectively towards him while also respecting his desire for independence. Ms KZN and Mr QNJ are familiar with Mr KVI's estate and possess appropriate skills and abilities to assist with his affairs.
6. The Tribunal noted the general support for the appointment of Ms KZN and Mr QNJ, and was satisfied on the evidence before it that Ms KZN and Mr QNJ were suitable persons to be appointed, jointly and severally, as financial managers for Mr KVI subject to the authorities and directions of the NSW Trustee and Guardian.

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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