NSW Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: KCG [2014] NSWCATGD 7
• Hearing dates: 23 January 2014 and 20 March 2014
• Decision date: 11 April 2014
• Jurisdiction: Guardianship Division
• Before: Schyvens, M, Deputy President and Division Head; Oxenham, M, Senior Member (Professional); Epstein-Frisch, B, General Member (Community)

Decision

Limited guardianship order made for a period of 12 months; Public Guardian appointed with accommodation, services and advocacy functions.

• Catchwords: GUARDIANSHIP - application for guardianship order - no person responsible - need for an order - National Disability Insurance Scheme nominee provisions
• Legislation Cited: Guardianship Act 1987 (NSW); NSW Trustee and Guardian Act 2009 (NSW); Protected Estates Act 1983 (NSW); National Disability Insurance Scheme Act 2013 (Cth)
• Cases Cited: KTT [2014] NSWCATGD 6
• Category: Principal judgment
• Parties: Miss KCG (subject person); Ms DAL (applicant); Ms NEN (substitute applicant); The Public Guardian; The NSW Trustee and Guardian (joined party)
• Representation: Separate representative
• File Number(s): 8570
• Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

reasons for decision

What the Tribunal decided

1 The Tribunal appointed the Public Guardian as Miss KCG's guardian for a period of 12 months to make decisions about her accommodation, advocacy and services as set out in the Tribunal's order.

Background

2 Miss KCG is a 64 year old single woman who resides in a group home managed by Ageing, Disability and Home Care (a division of the NSW Department of Family and Community Services).

3 On 11 January 1995 the Guardianship Board of NSW (as the Tribunal then was), made a financial management order for Miss KCG, committing her estate to management by the Protective Commissioner. The Protective Commissioner is now known as the NSW Trustee and Guardian ('the NSWTG'). At the time the order was made the relevant legislation was the Protected Estates Act 1983 (NSW). This Act has now been repealed and replaced by the NSW Trustee and Guardian Act 2009 (NSW) ('the NSWTG Act').

4 On 11 January 1995 the Guardianship Board also made a limited guardianship order for Miss KCG, appointing the Public Guardian ('PG'). This order was renewed on six occasions before it was lapsed on 27 January 2012. In the reasons for decision from the hearing on 27 January 2012 the Tribunal was satisfied that there were no major personal, health and lifestyle decisions to be made in respect of Miss KCG that required the appointment of a guardian at that time.

5 An application for the appointment of a guardian was made by Ms DAL, Team Leader at the Group Home where Miss KCG resides, on 26 November 2013.

6 The proceedings commenced in the NSW Guardianship Tribunal but by reason of the commencement of the Civil and Administrative Tribunal Act 2013 (NSW) ('the Civil and Administrative Tribunal Act'), which came into force on 1 January 2014, the Guardianship Tribunal was abolished. Pursuant to the transitional provisions in that Act the matter continued in the NSW Civil and Administrative Tribunal.

7 The application stated that:

• Miss KCG's group home will be transitioning under the National Disability Insurance Scheme ('the NDIS') and there will be significant staff changes due to the privatisation of Ageing, Disability and Home Care services.
• Miss KCG will need to be assessed and decisions will need to be made about her accommodation.
• Miss KCG's brother has advised that he no longer has time available to be Miss KCG's person responsible or advocate for her in relation to decisions.
• Miss KCG is a vulnerable person who has been targeted by 2 other residents in the group home, who have challenging behaviours and who intimidate her.
• The group home does its best to manage these behaviours but Miss KCG has expressed a wish to live somewhere else.
• There are external pressures from other parents of clients in the group home who would like the group home to remain as it is.
• A guardian is required to assist Miss KCG on NDIS-related decisions.

8 It is noted that due to the unavailability of Ms DAL, Ms NEN, a member of staff at the Group Home, subsequent to the lodgement of the application became the substitute applicant. Ms NEN participated in the hearing conducted on 23 January 2014 in that role. By the time of the second hearing, the original applicant Ms DAL was available and participated in the hearing as applicant.

The Hearing

9 The hearing of the application was conducted over two days. The first hearing was held on 23 January 2014 in the Newcastle area to allow Miss KCG to participate in person and for the Tribunal to obtain her views in relation to the application. The second hearing was held on 20 March 2014 at the Tribunal's premises in Balmain. Given that the Tribunal had the opportunity to seek Miss KCG's views at the first hearing, the Tribunal proposed that Miss KCG only attend the second hearing, which was convened primarily to discuss matters pertaining to the NDIS, if she indicated that she wished to do so. This was supported by the other parties to the proceedings. Consequently, Miss KCG did not participate in the second hearing.

10 During the hearing conducted on 23 January 2014, the representative of the NSWTG requested that the NSWTG be joined as a party to the proceedings in light of their appointed role as Miss KCG's financial manager. This request was not opposed by any party and the Tribunal ordered that the NSWTG be so joined.

What did the Tribunal have to decide?

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

• Is Miss KCG 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 KCG 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?

12 Section 14 of the Guardianship Act 1987 (NSW) ('the Guardianship 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" (section 3(1), Guardianship Act). A person with a disability is a person who is:

(a) intellectually , physically, psychologically or sensorily disabled

(b) of advanced age,

(c) a mentally ill person within the meaning of the Mental Health Act 2007 or

(d) 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 (section 3(2), Guardianship Act).

13 In her application to the Tribunal, Ms DAL states that Miss KCG has a "moderate intellectual disability, depression and anxiety." The applicant submitted two medical reports to the Tribunal which were not contested.

14 First, the Tribunal received correspondence dated 10 August 2013 authored by Dr Z, consultant psychiatrist. Dr Z advises:

[Miss KCG] is a delightful 62 year old woman who is living in a group home........She has been seeing me for nine years, and she has a major depressive disorder. She also has a moderate intellectual disability. I do not know her IQ testing, but given her high care needs and capacity to explain herself, this would my estimate.

15 Second, the Tribunal received a Health Professional Report from Dr Y, general practitioner dated 16 November 2013. Dr Y notes that she has been treating Miss KCG for 15 years and regularly sees her every 3 months or otherwise as required. Dr Y states that Miss KCG was born with an intellectual disability and has a moderate mental illness, specifically major depression disorder and anxiety. Dr Y opines that Miss KCG's disability affects her capacity to make decisions as to her accommodation, care and services and states that she is unable to make choices under the "new National Disability Scheme."

16 It was evident to the Tribunal through its engagement with Miss KCG that due to her cognitive disability, she was unable to understand neither the purpose of the hearing she was attending nor the ramifications of possible orders the Tribunal could make.

17 The Tribunal accepted the uncontested evidence presented to it authored by Dr Z and Dr Y. This evidence and the Tribunal's own interactions with Miss KCG satisfied the Tribunal that Miss KCG 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?

18 Having made a finding that Miss KCG is a person for whom the Tribunal could make a guardianship order the Tribunal must consider whether a guardianship order should be made. Section 14(2) of the Guardianship Act provides that, in considering whether or not to make a guardianship order for Miss KCG, the Tribunal must have regard to:

(a) The views of Miss KCG;

(b) The importance of preserving Miss KCG's family relationships;

(c) The importance of preserving Miss KCG's cultural and linguistic environments; and

(d) Whether services can be provided to Miss KCG without the need for a guardianship order.

19 There was uncontested evidence that Miss KCG's only known family member, her brother, was not able to provide support or be as involved in Miss KCG's life. There were no relevant cultural or linguistic factors identified in the application or the evidence that the Tribunal was required to consider. Accordingly, the Tribunal focused on taking into account the views of Miss KCG, obtained at the hearing on 23 January 2014, and whether services could be provided to her without the need for a formal guardianship order.

20 The Tribunal must also have regard to the principles in section 4 of the Guardianship Act, which include:

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation.

The views of Miss KCG

21 Miss KCG attended the hearing on 23 January 2014 and was assisted by her separate representative. It was evident to the Tribunal through interaction with Miss KCG that due to her cognitive disability, she was unable to understand neither the purpose of the hearing she was attending nor the ramifications of possible orders the Tribunal could make. Similarly, in discussion on her forthcoming transition to the NDIS, Miss KCG was unable to advise the Tribunal as to what this could possibly mean for her future accommodation or provision of services. Miss KCG was however able to advise the Tribunal that whilst she was happy with her accommodation, she had experienced some challenging incidents with other residents, and when prompted, seemed open to the idea of possibly exploring other accommodation options.

Accommodation decision

22 The Tribunal heard evidence that there had been a long term need for Miss KCG to move to more suitable accommodation. The applicant stated in her application and re-iterated at both hearings that Miss KCG had been subject to some bullying by other residents of the group home and had also been the subject of physical assaults. Miss KCG has no friend or relative currently available to assist her to make a decision in relation to her accommodation. The Tribunal was satisfied that a decision about Miss KCG's accommodation could not be made on an informal basis and that there was a need for a guardianship order with an accommodation function. A services function would also be required in order to ensure that any change to Miss KCG's accommodation was also made with the appropriate change to her services, such as her day program, if necessary.

23 In addition to the need for an order in relation to a decision about accommodation, the commencement of the National Disability Insurance Scheme Trial in the Newcastle region presented an opportunity to seek the funds necessary to enable Miss KCG to change her accommodation and service providers as required.

Issues related to the National Disability Insurance Scheme

Principles and objects of the NDIS

24 The objects of the NDIS are contained in section 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.

25 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.

26 In addition, section 5 contains separate principles that apply to people who may do acts or things on behalf of others under the NDIS Act. These include:

(a) people with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves;

(b) people with disability should be encouraged to engage in the life of the community;

(c) the judgements and decisions that people with disability would have made for themselves should be taken into account;

(d) the cultural and linguistic circumstances, and the gender, of people with disability should be taken into account;

(e) the supportive relationships, friendships and connections with others of people with disability should be recognised;

27 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)). People with disability will be supported in their dealings and communications with the NDIA so that their capacity to exercise choice and control is maximised (s 17A(2)). The NDIS is to:

(a) respect the interests of people with disability in exercising choice and control about matters that affect them; and

(b) enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and

(c) support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability (s 17A(3)).

28 The National Disability Insurance Agency (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

29 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 launch. Section 19(1) of the NDIS Act provides that an access request must be in the approved form, include the requisite information or attachments and be certified according to any requirements prescribed by the CEO of the NDIA. 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 NDIS (Becoming a Participant) Rules (18 June 2013) 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).

30 At the hearing on 23 January 2014 it was not known by any of the participants as to whether an access request had been made for Miss KCG. The Tribunal subsequently directed each party to provide information on the following questions in relation to Miss KCG's access to the NDIS:

(a) Is Miss KCG already a participant in the National Disability Insurance Scheme launch?

(b) If Miss KCG is not already a participant in the National Disability Insurance Scheme launch, has an access request for her to become a participant been made, and if so, who made the request, and if the request was not made by Miss KCG herself, under what legal authority was the request made?

(c) If no access request to become a participant in the National Disability Insurance Scheme launch has been lodged by, or on behalf of, Miss KCG then:

(i) Is it intended that Miss KCG will make the request herself? If so, is her ability to make such request in any way restricted or prevented by the fact that the Guardianship Tribunal has previously committed the management of Miss KCG's estate to the NSW Trustee and Guardian ("the NSWTG") by order dated 11 January 1995 ("the FM order");

(ii) If it is not intended that Miss KCG will make such request herself, who is envisaged to make the request for her and pursuant to what legal authority?

(iii) Given that the Guardianship Tribunal committed the management of Miss KCG's estate to the NSWTG pursuant to the FM order, do you have a view as to whether the NSWTG has the authority to make an access request for Miss KCG to become a participant, or are you of the view that the appointment of a guardian is required, and if so, what function(s) of guardianship would be required by an appointed Guardian?

31 The separate representative stated in a submission received by the Tribunal on 5 March 2014 that Ageing, Disability and Home Care had confirmed to him that Miss KCG had been deemed to be a participant by the CEO of the NDIA in December 2013. In a submission dated 20 March 2014, the separate representative indicated that Special Counsel for the NDIA, had advised him that Miss KCG was made a participant on 21 February 2014. The applicant stated at the hearing on 20 March 2014 that an access request had been made for Miss KCG by a staff member at the group home.

32 In written submissions, the separate representative drew attention to the NDIS Operational Guideline - Gateway - Making an Access Request (19 December 2013), which states:

12. A third party, on behalf of the prospective participant, may submit an access request form. However, the request will only be complete once the prospective participant or their representative has given certification. If a representative has signed the form, the NDIA officer must check that the person has authority to sign. That is, the person meets the requirements as the person's guardian, has otherwise been appointed as the person's representative, has parental responsibility for a prospective participation who is a child or is acting as an agent (with the approval) of the participant.

33 The separate representative noted at the hearing on 20 March 2014 that it appeared Miss KCG had become a participant in the scheme without a representative with appropriate authority having signed the access request on Miss KCG's behalf.

34 The applicant submitted that the access request process had been initiated by Miss KCG's day program service provider, who had requested that staff at the group home attend to filling out the access request form. Special Counsel for the NDIA confirmed at the hearing on 20 March 2014 that the NDIA uses service providers to distribute access request forms and that, generally, anyone can sign an access request form on behalf of the prospective participant. The Special Counsel stated that the prospective participant's capacity to make an access request is generally not assessed at this stage of the process. In his written submissions the Special Counsel for the NDIA stated that the NDIA would not usually consider making an application for an order appointing a substitute decision maker under state-based legislation if it was identified that a prospective participant did not have any authorised representative to make the access request on his or her behalf.

35 In response to questions 4(c)(i)-(iii), concerning the relationship between the existing financial management order for Miss KCG and the access request, the separate representative submitted that the NSWTG does have the authority to make an access request for Miss KCG. Section 57(1) of the NSW Trustee and Guardian Act provides that the NSWTG has and may exercise all the functions the person could exercise if the person was under no incapacity.

36 The NSWTG, in written submissions dated 17 February 2014, stated that it was more appropriate for the access request to be initiated by a case worker rather than by a financial manager. This submission was made despite the NSWTG accepting that an access request must be signed by a representative with authority to do so. Where there is no case worker available to make the access request, the NSWTG submitted that both a guardian and a financial manager could make an access request. If a guardianship order were made for Miss KCG, it would be a matter of communication between the two to determine which of them will make the request.

37 In relation to the question of whether a guardian, if appointed for Miss KCG, would have the authority to make an access request, the Public Guardian submitted that it would depend on the nature of the access request. The Public Guardian submitted that if the nature of the request was on the basis of a need for funding, then the NSWTG would have the authority to do so as a financial manager. If the nature of the access request was characterised as a request for services, then a guardian would be required to make the request. The Public Guardian also submitted that the guardian would need to be appointed with a services function and that other functions may be required depending on the identified need for Miss KCG.

38 The Tribunal considers that, whilst this submission may have confused access with plan management, it identifies one of the key issues of interaction between the NDIS and the state-based substitute decision making regime. Decisions that are made under the NDIS may involve decisions that are both in the nature of financial management and guardianship. Where a participant has diminished or no capacity to make decisions for themselves and there is no private person available to become his or her nominee in the NDIS, is it appropriate that state based substitute decision making regimes be used to facilitate this process? This interaction in respect of plan management is discussed later in these reasons for decision.

39 It was not clear to the Tribunal under what authority the staff member signed an access request on behalf of Miss KCG. However, it was clear in the evidence that, contrary to the NDIA operational guideline, Miss KCG's access request had been accepted, the CEO had determined that she met the relevant access criteria and she is now a participant in the NDIS.

Plan management and the NDIS: nominees

40 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):

• The plan be individualised and directed by the participant.
• Where relevant, consider the role of family, carers and other significant persons.
• Be underpinned by the right of the participant to exercise choice and control.

41 The plan must specify whether it will be managed, wholly or to a specific extent, by:

(a) The participant

(b) A registered plan management provider

(c) The Agency

(d) A plan nominee (ss 33(2) and 42(2), NDIS Act).

42 For the purposes of the Act, the CEO may appoint a plan nominee for a participant, either of 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:

(a) has guardianship of the participant; or

(b) 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).

43 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, NDIS (Nominees) Rules). A person may be appointed as both a correspondence and a plan nominee (s 88(1), NDIS Act).

44 Rule 3.14 of the NDIS (Nominees) Rules provides that, when deciding whether to appoint a nominee of own motion, the CEO is to:

(a) consult with the participant; and

(b) have regard to the following:

(i) whether the participant would be able to participate effectively in the NDIS without having a nominee appointed;

(ii) the principle that a nominee should be appointed only when necessary, as a last resort, and subject to appropriate safeguards;

(iii) whether the participant has a court-appointed decision-maker or a participant-appointed decision-maker;

(iv) 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;

(v) 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.

45 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).

46 The nominee has a number of duties to the participant under s 80 of the NDIS Act, including:

• ascertaining the wishes of the participant in relation to any act
• ensuring that any act done by the nominee promotes the personal and social wellbeing of the participant
• supporting the participant to make the decision personally
• giving appropriate weight to the views of the participant
• informing the CEO of any acquired interest, pecuniary or otherwise, that may conflict with the role of nominee.

47 The nominee also has duties under the NDIS (Nominees) Rules:

• 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)
• to consult with any other nominee appointed under the NDIS (rule 5.9)
• to develop the capacity of the participant (rule 5.10)
• to avoid or manage conflicts of interest (rule 5.12)

48 On 20 January 2014, the Tribunal directed the parties to provide submissions on the following questions concerning plan management and nominees:

(a) In the event that Miss KCG is, or becomes, a participant in the National Disability Insurance Scheme Launch:

(i) Does the funding or benefits, received by Miss KCG as a participant, monetary or otherwise, form part of her estate, the management of which is committed to the NSWTG? If such funding or benefits do form part of her estate, will it attract the application of any fees or charges by the NSWTG?

(ii) Will Miss KCG require a plan nominee and/or a correspondence nominee (collectively "nominee") to be appointed as provided for in Part 5 of the National Disability Insurance Scheme Act 2013?

(iii) If a nominee is required, how will a nominee be appointed for Miss KCG?

(iv) Are the powers and responsibilities the NSWTG currently have in relation to Miss KCG relevant to the duties of a nominee as contemplated in s.88(4) of the National Disability Insurance Scheme Act 2013?

(v) Do you have a view as to who could or should be appointed as nominee for Miss KCG if required? Should the NSWTG in their role of financial manager for Miss KCG be so appointed? Or alternatively, if appointed as her guardian, should the Public Guardian (the "PG") be appointed as nominee and with what function(s) of guardianship? Or if the PG is appointed as Miss KCG's guardian, should the NSWTG and the PG be appointed jointly as nominee? Please provide any reasons for any suggested appointments;

(vi) With particular reference to the duties imposed upon nominees appointed pursuant to the National Disability Insurance Scheme Act 2013, is there any impediment to either the NSWTG or the PG consenting to being appointed as Miss KCG's nominee if requested to do so, and as required by s.88(2)(a) of that Act? Would the duties of an appointed nominee in any way conflict with the respective duties of the NSWTG as Miss KCG's financial manager, or if appointed, the PG as Miss KCG's guardian, pursuant to the Guardianship Act 1987 and the NSW Trustee and Guardian Act 2009 (as applicable)?;

(vii) If requested to become Miss KCG's nominee, would the NSWTG consent?

(viii) If appointed as Miss KCG's Guardian and subsequently requested to become Miss KCG's nominee, would the PG consent?

Funding decisions and the NDIS: relationship with financial management

49 The Tribunal considers that the relationship between the existing financial management order for Miss KCG and the operation of the NDIS is relevant to the determination of whether there was a need for a guardianship order because it may be that there is no need for a guardian in relation to decisions under the NDIS if the NSWTG is able to perform this role under their current appointment.

50 The separate representative submitted that the funding or benefits received by Miss KCG under the NDIS would form part of her estate that is committed to management by the NSWTG; however, any funding that is paid directly to the service provider would not form part of the estate. Section 38 of the NSW Trustee and Guardian Act defines the estate of a person to mean the property and affairs of a person. Section 111 of the NSW Trustee and Guardian Act provides that fees may be charged for the management of an estate as prescribed by the regulations. The separate representative submitted that it is likely that the NSWTG would impose fees for the management of Miss KCG's funding received to the estate under the NDIS. The separate representative submitted that, generally, participants in the NDIS who are also subject to a state-based financial management order should not be given bulk funds under the NDIS to self-manage or for the financial manager to manage on his or her behalf.

51 The NSWTG submitted that the NDIS (Plan Management) Rules (1 July 2013) require consideration of unreasonable risk in deciding the management of the funding. Under rule 3.8 one of the factors relevant to the capacity of the participant to self-manage is whether a court or tribunal has made an order under which the participant's property (including finances) or affairs are to be managed, wholly or partly, by another person. In Miss KCG's case, such an order was made appointing the NSWTG.

52 In response to the question of whether the funding or benefits received by Miss KCG as a participant form part of her estate which is committed to management, the NSWTG submitted:

It is open to the NDIA to decide to pay the funding direct to the service provider, in which case NSWTG does not see a need to seek appointment as the participant's nominee nor to claim the funding as part of the financially managed person's estate.

NSWTG will therefore be requesting, where possible, that NDIS funds are paid directly to a service provider unless there is clear evidence that the person can be supported to manage their own funding informally and locally. Under this direct funding arrangement there will be no fees. If NSWTG are required to hold and manage the funding on behalf of individuals there will be further anticipated costs. NSWTG is unable to quarantine NDIS funds separately to the clients trust account and further fees may therefore need to be raised for augmented financial management roles and responsibilities required under NDIS.

Under s 71(1) of the NSW Trustee and Guardian Act 2009 the power of a managed person to deal with his or her estate is suspended in respect of so much of that estate as is subject to management under this Act. NSWTG is of the view that unless exempted by the terms of the management order, then any NDIA funding paid other than directly to the service provider would form part of the managed person's estate and therefore incur a fee.

53 The Tribunal notes for practical purposes that Miss KCG (if she were able to do so) could only manage her own funding under the NDIS if either:

(a) The NSWTG authorised Miss KCG in writing to deal with so much of the estate as it considers appropriate under s 71(2) of the NSW Trustee and Guardian Act; or

(b) The Tribunal varied the financial management order under s 25P of the Guardianship Act to exclude any funding or benefits received under the NDIS.

54 At the hearing on 20 March 2014, the NSWTG raised other financial management issues related to the interaction with the NDIS, which included that Miss KCG's Centrelink allowances may be affected once a plan is approved. The NSWTG also noted, and the Special Counsel for the NDIA confirmed, that the NDIA requires that all participants open a bank account to protect them from any garnishee action, and any allowances or budgeted amounts are transferred into this personal account. The NSWTG gave evidence that it is not able to operate individual bank accounts on behalf of its managed clients as all funds are held in a trust account. Accordingly, there appeared to the Tribunal to be a number of financial decisions required to be undertaken in relation to the plan for Miss KCG under the NDIS that may or may not correspond with the NSWTG's authority as financial manager under state-based legislation.

Guardianship orders and NDIS nominees: the need for an order

55 The separate representative's view, recorded in his written submissions received on 2 April 2014, was that a guardianship order should be made for Miss KCG, appointing the Public Guardian with the functions of accommodation, services and advocacy. The separate representative also submitted that Miss KCG will require a nominee to be appointed by the CEO (written submissions, 5 March 2014):

In consideration that Miss KCG is the subject of a financial management order and has a decision making disability such that it will not be possible for her to be assisted to make complex decisions for herself, it is highly likely that the CEO will find it necessary to appoint a nominee for Miss KCG.

56 Further, the separate representative submitted that both the NSWTG and the Public Guardian should be appointed as nominee for Miss KCG 'because both have differing functions which are expected to be performed by a nominee.' The separate representative also submitted that:

Arguably, the expertise of the PG in relation to broader issues of [the] health and welfare of persons who have guardians is well suited to dealing with the health and welfare issues arising from questions of appropriate housing, treatment, services, therapies and so on that would attend application for and use of funds from the NDIA.

The separate representative submits that it is desirable for [the] PG to be appointed nominee for people over whom they have guardianship as otherwise there is a risk of duplication of services. However, it is unlikely that the PG sees its role as being a "case manager" and might not be equipped for this role unless as a last resort. That is, when there is no other person available to assume the role.

...

In conclusion, the separate representative submits that financially related functions should be with the [NSWTG] and all other NDIS-related funding to the PG..."

57 The Public Guardian submitted that whilst the powers and responsibilities of the NSWTG as Miss KCG's financial manager are relevant to the duties of a nominee as contemplated in s 88(4) of the NDIS Act, some of the duties of a nominee would be more consistent with the role of a guardian. The Public Guardian submitted that if there was to be funding provided directly to Miss KCG, then the NSWTG should be jointly appointed as nominee with the guardian. If the funding was to be provided to service providers, the NSWTG does not need to be appointed as a joint nominee. The Public Guardian submitted that it would not consent to being appointed as a nominee for Miss KCG under the NDIS without first being appointed as her guardian by the Tribunal. The Public Guardian submitted that, if appointed as Miss KCG's guardian, the Public Guardian would likely consent to being appointed as Miss KCG's nominee for the NDIS. At the hearing on 20 March 2014 and in written submissions received on 24 March 2014, the Public Guardian submitted that the functions of accommodation, advocacy and services would be required in Miss KCG's circumstances.

58 The NSWTG's written submissions were consistent with the Public Guardian's with regards to the relationship between the duties of nominee and the roles of financial manager and guardian. The NSWTG was of the view that there was no impediment to the NSWTG consenting to being appointed as nominee for Miss KCG, provided that the appointment was limited to activities that corresponded with the NSWTG's statutory functions. Section 86(3) of the NDIS Act provides that the appointment of a nominee may limit the matters to which the person is the plan nominee of a participant.

59 At the hearing on 20 March 2014 the applicant addressed a suggestion that she, or another employee at the group home, could take on the role of nominee for Miss KCG. The applicant submitted that she did not believe it would be appropriate for a paid employee of Ageing, Disability and Home Care to be appointed as nominee for Miss KCG, as a conflict of interest may arise where a decision to change Miss KCG's accommodation or services could affect the case worker's employment. This submission was supported by the separate representative. The Tribunal notes that similarly, a paid professional carer may not be appointed by the Tribunal as a guardian for Miss KCG due to the potential conflict of interest (s 17, Guardianship Act).

60 In written submissions dated 1 April 2014, Special Counsel for the NDIA evidenced that, where a participant does not have the capacity to make the decisions required under the Act in relation to plan management and has no authorised representative, the NDIA would inquire as to the wishes of the participant, identify any informal supports available to prospective participants and then make a decision itself by taking into account all of the facts. The Tribunal understood these submissions to mean that in most circumstances where a participant was unable to self-manage, it was likely that plan management would be undertaken by the NDIA itself pursuant to s 42(2)(c) of the NDIS Act.

61 The Special Counsel for the NDIA submitted that there have been no appointments of a nominee for any participant in NSW or Victoria. He submitted that there have been some nominees appointed in Tasmania involving the Tasmanian Office of the Public Guardian. He stated that in Victoria, the Office of the Public Advocate has provided some supported decision making resources to participants. However, this system is not based on the Public Advocate having been appointed formally as the participant's guardian under the state-based legislation nor as a nominee under the NDIS Act. Special Counsel further submitted 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 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.

62 The Special Counsel for the NDIA submitted at the hearing that this approach was consistent with the principles and objects of the NDIS and rule 3.4 of the NDIS (Nominees) Rules, which states:

3.4 It is only in 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 the participant's wishes and the participant's circumstances (including their formal and informal support networks).

63 The Tribunal considered that it was relevant to determine whether there was any need for a guardianship order to facilitate plan management for Miss KCG under the NDIS, given the evidence of the Special Counsel for the NDIA in relation to the general practice of the NDIA managing plans on behalf of participants who could not self-manage and the evidence that there had been no appointments of nominees for participants in NSW since the commencement of the scheme.

Conclusion on the need for a guardianship order

64 The Tribunal notes that it appears a number of decisions had already been made by the NDIA and others on behalf of Miss KCG. Whilst the decisions to date had, ultimately, no apparent negative and little practical impact on Miss KCG's lifestyle other than allowing for her to become a participant in the NDIS, it is clear that the next steps in the process of developing the plan, determining how funding and supports were to be provided and managing the plan would be decisions that would have a significant impact on Miss KCG's life.

65 The NDIS Act and rules would allow the NDIA to continue to manage Miss KCG's NDIS plan on her behalf without the appointment of a nominee. It was clear to the Tribunal that the NSWTG could be appointed as a nominee for Miss KCG to manage the financial and legal aspects of her plan under the NDIS, provided that the appointment was limited to the statutory functions of the NSWTG. However, it is matter for the NSWTG as to whether it will seek to be appointed as nominee for Miss KCG, as her plan could be managed by the NDIA or another nominee.

66 The Tribunal found that there were some decisions required to be made under the NDIS that were in the nature of personal and lifestyle decisions, falling outside of the scope of the financial management order. The evidence was that these decisions could be made by the NDIA or by a nominee, if a nominee were appointed for Miss KCG.

67 The Tribunal's view is that where important lifestyle and financial 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 Miss KCG, it is appropriate that an independent substitute decision maker such as guardian or financial manager (depending on the nature of the decision) is appointed to undertake that responsibility. The NDIS nominee scheme is a substitute decision making scheme designed for people with disability like Miss KCG. 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.

68 The Tribunal considers that any substitute decision making regime must include appropriate safeguards to ensure that the rights of the person with the disability are not infringed and that the arrangements are regularly reviewed to ensure that, firstly, the appointed decision maker is acting in the person's best interests and, secondly, to vary or revoke the arrangements where they are no longer needed. The Guardianship Act contains provisions to ensure that a guardian's authority is limited to the specific functions or areas of decision making where there is a current need for substitute decision making, orders are only in place for the shortest time possible and that they are subject to regular review by the Tribunal.

69 Comparatively, it is arguable that, where the NDIA is making decisions on behalf of a participant and the participant has diminished or no capacity to express a view or be supported to participate in the process, in addition to having no private support network to advocate on their behalf or any person to initiate a review of a decision by the NDIA, then there may be a lack of appropriate safeguards in place. Accordingly, there may be limitations to Miss KCG's NDIS plan being managed by the NDIA without independent scrutiny. The irony in reaching this conclusion is that a state based appointment is required for a person in Miss KCG's circumstances to ensure that her interests in relation to a Commonwealth scheme are protected, as it seems there is no Commonwealth equivalent of a Public Guardian, a Public Advocate or other independent body who could be appointed as a nominee on her behalf.

70 The nominee scheme in the NDIS operates independently of the state-based guardianship and financial management regime. The Tribunal is not proposing that the appointment of guardians and financial managers under the state-based guardianship legislation should become a vehicle for influencing the nominee scheme of the NDIS where there is a friend or relative who could be considered as nominee. For example, in KTT [2014] NSWCATGD 6 the Tribunal dismissed an application for a guardianship order where the mother of a young man aged 18 years sought to be appointed as guardian in order to facilitate her appointed as a nominee under the NDIS Act. The appointment of guardian solely for this purpose would not be consistent with the principles in section 4 of the Guardianship Act nor satisfy the required mandatory considerations in s 14(2).

71 The features which distinguish Miss KCG's case from KTT [2014] NSWCATGD 6 are:

(1) The current need for accommodation and services decisions to be made for Miss KCG, regardless of her involvement in the NDIS, due to her difficult relationship with other residents in the group home and her expressed wish to live somewhere else; and

(2) The fact that Miss KCG has no person involved in her life who could advocate on Miss KCG's behalf in relation to decisions made by the NDIA or, if necessary, seek to be appointed as nominee.

72 The appointment of a guardian for Miss KCG with an advocacy function will assist to ensure that the guardian has the authority to request to be consulted and to receive information from the NDIA in relation to its decisions. Even if the appointed guardian does not seek to be appointed as a nominee under the NDIS, the guardian may have standing to seek a review of any decision made by the NDIA on behalf of Miss KCG under the provisions in Part 6 of Chapter of the NDIS Act. Without a formal guardianship order appointing a guardian for her, Miss KCG may be left without independent support and scrutiny of decisions made by the NDIA on her behalf.

73 Miss KCG is likely to require decisions to be made under the NDIS that relate to her personal and lifestyle needs, specifically her accommodation and services. The Tribunal has made a finding that Miss KCG does not have the capacity to make these decisions for herself. The Tribunal determined that the accommodation and services decisions cannot be made informally on Miss KCG's behalf and that there is no friend or relative available to advocate for Miss KCG on an informal basis. It is not possible for these decisions to be made without a guardianship order. Accordingly, the Tribunal determined that on the basis of all of the evidence that a guardianship order should be made with the functions of accommodation, advocacy and services.

Who should be the guardian?

74 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. The evidence before the Tribunal is that Miss KCG's only relative, her brother, does not wish to be considered for the role of guardian. The separate representative submitted that the Public Guardian should be appointed for Miss KCG. There is no private person available to be appointed as guardian for Miss KCG, therefore, the Tribunal appointed the Public Guardian.

How long should the order last?

75 An initial guardianship order can be made for a period of up to 12 months from the date on which it was made. However, an order of up to three years can be made, if the person the subject of the order has permanent disabilities, is unlikely to become capable of managing his or her person and there is the need for an order longer than one year. The Tribunal decided to make an order for 12 months because it is likely any decision relating to Miss KCG's accommodation and services may need to be made over a 12 month period.

76 Deputy President, Division Head - Guardianship Division

77 15 May 2014

**********

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

Decision last updated: 19 May 2014