NSW Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: NZO [2014] NSWCATGD 9
• Hearing dates: 23 January 2014
• Decision date: 20 March 2014
• Jurisdiction: Guardianship Division
• Before: Schyvens M, Deputy President; Oxenham M, Senior Member (Professional); Epstein-Frisch B, General Member (Community)

Decision

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

• Catchwords: GUARDIANSHIP - National Disability Insurance Scheme - need for an order - need for independent advocacy.
• Legislation Cited: Guardianship Act 1987 (NSW)
• Cases Cited: KCG [2014] NSWCATGD 7
• Category: Principal judgment
• Parties: Miss NZO; Ms LYE (Applicant); The Public Guardian
• File Number(s): 44967
• 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 NZO's guardian for a period of 12 months to make decisions about her accommodation, about what services which she should receive and to advocate generally for her as set out in the Tribunal's order.

Background

2 Miss NZO is a 68 year-old woman who lives in a privately rented house in Regional NSW with three other residents. Miss NZO receives daily "drop-in support" provided by an In-Home Support Service which is a division of the Ageing, Disability & Home Care (ADHC) Accommodation Service.

3 Ms LYE lodged an application for a guardianship order for Miss NZO on 21 October 2013. Ms LYE is a Team Leader at Accommodation Support Services at ADHC in regional NSW. Ms LYE states in her application that Miss NZO has an intellectual disability and that she requires the appointment of a guardian to make substitute decisions for her in certain areas of her life, primarily due to the implementation of the National Disability Insurance Scheme ("NDIS").

The Hearing and subsequent determination of the Tribunal

4 At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing. [Appendix removed for publication].

5 Ms LYE's application for the appointment of a guardian was listed for hearing in Regional NSW on 23 January 2014 to assist the participation of Miss NZO in the hearing. Miss NZO attended the hearing.

6 At the hearing of 23 January 2014 whilst the Tribunal was satisfied that it had received sufficient evidence to determine some elements of the application, it was not satisfied that sufficient evidence was available to determine whether there was a current need for Miss NZO to have a guardian appointed. This was primarily due to insufficient evidence being available to the Tribunal in relation to the impact of the implementation of the NDIS upon Miss NZO. Accordingly, the Tribunal adjourned the proceedings for a period of approximately 6 weeks and issued detailed directions and notations to the parties which included the following direction:

"The Tribunal will proceed to make final orders in respect of the application without further hearing unless:

a. On or before 21 February 2014, a party to the application provides a request in writing to the Tribunal for a further hearing; or

b. The Tribunal subsequently orders that a further hearing is required."

7 The Tribunal did not receive any request from a party to the proceedings to engage in a further hearing. As the Tribunal, of its own motion, determined there was no requirement for a further hearing, the Tribunal proceeded to determine the application based upon the evidence obtained at the hearing of 23 January 2014 and the subsequent submissions of parties and issued its orders on 20 March 2014.

What did Tribunal have to decide?

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

• Is Miss NZO someone for whom the Tribunal could make an order because she has a disability which prevents 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 NZO 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?

9 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 (NSW); 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).

10 Miss NZO was described by the applicant as having an intellectual disability since birth.

11 The Tribunal was in receipt of a health professional report authored by Dr Z, medical practitioner, dated 18 January 2014, which indicated that Miss NZO had been a patient of his practice for about 10 years. Dr Z described Miss NZO as having a severe intellectual disability, which resulted in "an insufficient level of receptive and verbal communication comprehension" to make important life decisions.

12 It was evident to the Tribunal through its engagement with Miss NZO that due to her cognitive disability, she was unable to understand either the purpose of the hearing she was attending or the ramifications of possible orders the Tribunal could make. The Tribunal was satisfied that Miss NZO 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?

13 Having made a finding that Miss NZO 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 NZO, the Tribunal must have regard to:

(a) The views of Miss NZO;

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

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

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

14 There was uncontested evidence that Miss NZO does not have any regular contact with family members, nor does she have any friends or acquaintances with whom she has regular contact outside of her current home environment. 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 NZO, sought at the hearing on 23 January 2014, and whether services could be provided to her without the need for a formal guardianship order.

15 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 NZO

16 Miss NZO attended the hearing on 23 January. It was evident to the Tribunal through interaction with Miss NZO that due to her cognitive disability, she was unable to understand either the purpose of the hearing she was attending or the ramifications of possible orders the Tribunal could make. Similarly, in discussion about her forthcoming transition involving the NDIS, Miss NZO was unable to advise the Tribunal as to what this would mean for her future accommodation or provision of services. Miss NZO was however able to advise the Tribunal that "she did not want to move."

The implementation of the NDIS - impact upon Miss NZO

17 Ms LYE provided the following view in support of her application as to why there is a current need for Miss NZO to have a guardian appointed:

"[Miss NZO] shares a privately rented house in the community with three other women with intellectual disabilities who are all supported by an In-Home Support Service of ADHC. She is assisted with her daily personal care needs, medication administration, meal preparation, financial and social planning and domestic care. [Miss NZO] appears to be happy with the service she receives and is healthy and settled.

The National Disability Insurance Agency (NDIA, formerly National Disability Insurance Scheme/Disability Care), was launched in five Pilot areas in NSW on the 1st July 2013. The Hunter Region is one of the 5 Pilot areas. The NDIA will change the way Disability Services are delivered in this State by transferring the provision of service from the State Government to the Commonwealth Government. This will be a staged process, commencing nationally from 2018. However, because [Miss NZO] resides in one of the Pilot areas, the Service she receives will be impacted immediately.

Persons Responsible, advocates and family members of people with a disability currently receiving an accommodation service in the Hunter were asked to provide their consent to commence discussions about their Service Provision with the NDIA. [Miss NZO] has no Person Responsible, family member or advocate who is able to either consent to the commencement of this process for her, nor does she have anyone who can assist her with decisions that will need to be made about the services she receives now or in the immediate future. The Director General of ADHC has stated that:

● By 2018 our department will no longer provide disability services. People with disability will get their supports from non-government organisations and, possibly, the Commonwealth.

● To get ready for NDIS we're rolling out individualised funding and more places for people with disability, and helping the non-government sector grow to be able to take over service delivery.

● It's time for us to begin talking to staff and their industrial representatives about how to transition our disability services to the non-government sector.

As [Miss NZO] will have many important decisions to make with regard to her continuing supported accommodation in the coming months, I would like to apply to the Guardianship Tribunal to appoint a Public Guardian to assist her with the process."

18 At the hearing conducted on 23 January 2014 there was ambiguity as to how Miss NZO was to be impacted by the implementation of the NDIS. The applicant advised the Tribunal that whilst she understood that given Miss NZO was over 65 years of age she was not entitled to become a participant of the NDIS, she advised that Miss NZO was still required to return "consent or access request forms" to the NDIA to obtain future funding that would otherwise have been provided by ADHC. The applicant also advised that, in her view, "ADHC does not have a clear position on what is to happen to people over 65 (years of age)" and that as a result "ADHC Legal told me to seek a guardian for Miss NZO."

19 In an endeavour to obtain greater clarity as to what interaction Miss NZO has, or may have in future, with the NDIS, the Tribunal adjourned the hearing of 23 January 2014 and sought written submissions from the parties on several matters, including the following:

"the Tribunal directs each party to the proceedings (excluding [Miss NZO]) to respond in writing to the Tribunal on or before 11 February 2014 to each of the following inquiries so far as they are able to do:

(a) Is [Miss NZO] already a participant in the National Disability Insurance Scheme launch?

(b) If [Miss NZO] is not already a participant in the National Disability Insurance Scheme launch, what is your understanding as to whether she is entitled to become a participant in the National Disability Insurance Scheme launch?

(c) If you are of the understanding that [Miss NZO] is not entitled to become a participant in the National Disability Insurance Scheme launch:

(i) What form of entitlement (if any) does [Miss NZO] have pursuant to the National Disability Insurance Scheme Act 2013?

(ii) How will decisions be made in relation to [Miss NZO]'s entitlements under the National Disability Insurance Scheme Act 2013?

(iii) If [Miss NZO] has entitlements pursuant to the National Disability Insurance Scheme Act 2013, but is not able to become a participant, will a "participant plan" be developed for [Miss NZO] pursuant to that Act, and, if required, may she have a nominee appointed for her as provided for in Part 5 of that Act?"

20 The submissions the Tribunal received confirmed that Miss NZO was not entitled to become a participant in the NDIS. It is useful to recount the submissions received on this point from Ms Y, Director, Operations NDIS (Hunter New England) on behalf of ADHC dated 11 February 2014:

"It is our understanding that [Miss NZO] is not eligible to be a participant of the NDIS because she is over the age of 65 (see NDIS ACT 2013 s 22). However, the Intergovernmental Agreement for the NDIS Launch, paragraph [60] to [65], provides that people resident in a launch site who are not eligible (due to age or other reasons) for the NDIS will continue to receive support consistent with their currently agreed arrangements for the duration of the NDIS launch - up until 30 June 2016. Continuity of support is only required or available if their current ADHC funded or operated program is about to cease. Where the person is over 65 (or 50 for Indigenous people), the Commonwealth Aged Care system (under the Commonwealth Department of Social Services) will be responsible for funding of any supports. However, during the launch period, residents aged over 65 in the launch site are able to apply to the NDIS, not for eligibility as a participant, but purely for a continuity of support arrangement. (emphasis added)

As [Miss NZO] is not eligible to be a participant in the NDIS, it is our understanding that she will not require a plan nominee and/or a correspondence nominee to be appointed. We note however that only the NDIA can definitely advise on this issue.

Applications to the NDIS, and/or the Commonwealth Aged Care system, will require [Miss NZO]'s consent, or the consent of her guardian.

Currently, [Miss NZO] privately rents accommodation with three (3) other ADHC clients, all of which received In-Home Support Services. Two (2) of these clients may be classified as eligible participants under the NDIS. It is envisaged that the current accommodation arrangement will change due to their participation in the NDIS.

What this means is that [Miss NZO], with the assistance of her Guardian (if appointed) will be required at some point in the next few years to make decisions regarding her support needs, including accommodation. She will at the very least need to make applications to the NDIS for continuity of support arrangement and/or to the Commonwealth Aged Care system for an assessment for support."

Conclusion on the need for a guardianship order

21 The uncontested factual evidence before the Tribunal may be summarised as follows:

• Miss NZO has resided in her current group home environment for many years, and whilst limited in her ability to make her wishes known, has indicated that she is happy in her current environment and does not wish to move;

• Miss NZO resides within a pilot area for the commencement of the NDIS and the manner in which services are provided to her will change due to the NDIS and arrangements in place between the NSW and Commonwealth Governments;

• Due to her age, Miss NZO is not entitled to become a participant of the NDIS;

• However, as she resides with two others who are most likely entitled to become participants in the NDIS, it is highly probably that her current accommodation arrangements will be unable to continue into the future;

• Miss NZO, whilst not entitled to be a participant in the NDIS, will continue to receive support akin to that received through ADHC but through the NDIA; and

• Miss NZO has no independent person available to her to assist her, or otherwise advocate for her, in relation to any changes in service provision and any resultant accommodation changes.

22 The evidence made it clear to the Tribunal that Miss NZO currently requires the appointment of a guardian for two reasons.

23 First, Miss NZO's accommodation is at threat, accommodation with which she is seemingly content and is appropriate for her needs. It is at threat not because she is to become entitled to become a participant in the NDIS but because her two other co-residents are most likely so entitled. In these circumstances, particularly in light of the evidence that Miss NZO has no independent support person available to her, it is imperative that Miss NZO have the benefit of a guardian to advocate on her behalf. Whilst the Tribunal notes that Miss NZO has the support of her care workers, in concurrence with the evidence provided by Miss NZO's care workers who participated in the hearing, it is not in Miss NZO's best interests that at this important time decision making be undertaken by persons who have interests that may conflict with Miss NZO. Given the evidence available to the Tribunal that care workers, such as those supporting Miss NZO, are in future to be employed by non-government agencies, not the NSW Government, such persons' personal interests as to employment are entwined, not to an insignificant degree, with any accommodation decisions that are made in relation to Miss NZO and her co-residents.

24 Second, their seemed to the Tribunal a significant level of uncertainty as to when changes were to occur to Miss NZO's service arrangements and how decisions would be made on Miss NZO's behalf, as required. The applicant suggested changes could be effected as early as April 2014. The evidence received from Ms Y of ADHC in her submissions indicated that Miss NZO was to continue to receive support consistent with that currently provided by ADHC but through the NDIS as a "non-participant." Even though Miss NZO is not entitled to become a participant in the NDIS, the submission provided by ADHC indicated that:

"Applications to the NDIS, and/or the Commonwealth Aged Care system, will require [Miss NZO]'s consent, or the consent of her guardian."

25 Miss NZO's disability means that she would be unable to provide the consent suggested in the email and accordingly a substitute decision maker is required at this juncture in Miss NZO's life based upon the submission of ADHC. The uncertainty is escalated by the fact that Miss NZO is to receive future support from the NDIA but will not seemingly not have the benefits of being a participant in the NDIS, and most importantly in Miss NZO's circumstances, the potential recourse to having a nominee appointed to make substitute decisions as to management of entitlements.

26 The Tribunal notes it concern that during this important period of transition for Miss NZO, and no doubt many others in her circumstances, there was an unfortunate lack of clarity evident in the proceedings as to what was to happen next and who would be making decisions for Miss NZO in the absence of a guardianship appointment. It was also of concern that it seems Miss NZO is to become a "quasi participant" of the NDIS without the benefits of a participant, such as the appointment of a nominee.

27 Until such matters are resolved, the Tribunal concluded it was imperative that Miss NZO have a guardian appointed. As was the case in the Tribunals' determination in KCG [2014] NSWCATGD 7 it is an unfortunate irony that in the Tribunal must conclude that Miss NZO, a person who was not otherwise a person currently needing the appointment of a substitute decision maker, now requires this appointment based in NSW law due to the implementation of a Commonwealth scheme appropriately designed to enhance the autonomy and recognition of the legal capacity of persons with disabilities.

What decision making functions should be included in the order?

28 As outlined previously, the evidence before the Tribunal indicated that there were likely to be imminent proposals for change in relation to Miss NZO's accommodation and the manner and nature of the services she receives. Accordingly the Tribunal determined that her appointed guardian required the functions of accommodation, services and advocacy.

Who should be the guardian?

29 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.

30 There was no private person seeking appointment as Miss NZO's guardian and there was no information available to the Tribunal to suggest Miss NZO had the support of any independent person who could be considered for appointment as her guardian.

31 Accordingly, the Tribunal appointed the Public Guardian as Miss NZO's guardian.

How long should the order last?

32 An initial guardianship order can be made for a period of up to one year 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.

33 The Tribunal decided to make an order for a period of one year. As previously noted, but for the implementation of the NDIS, the Tribunal would not have concluded that Miss NZO was currently a person requiring the appointment of a guardian. The Tribunal would hope that the period of one year might allow for greater clarity as to how Miss NZO is to receive support into the future and this may also be a sufficient period to stabilise Miss NZO's accommodation placement, whether that be in her current residence or elsewhere. Accordingly the Tribunal directed that the order be reviewed in one year to determine whether the order may be permitted to lapse at that time, or otherwise.

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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

Decision last updated: 19 August 2014