ACV v Public Guardian and ACX [2011] NSWADT 167

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: ACV v Public Guardian and ACX [2011] NSWADT 167 Hearing dates: 24 June 2011, 6 July 2011 Decision date: 12 July 2011 Jurisdiction: General Division Before: L Goodchild, Judicial Member Decision: That the decision of the Public Guardian be affirmed. Legislation Cited: Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Guardianship Regulations 2005 Cases Cited: OM v Public Guardian (2010) NSWADT 137 Category: Principal judgment Parties: ACV (Applicant) Public Guardian (First Respondent) ACX (Second Respondent) File Number(s): 113124 Publication restriction: s.126 of the Administrative Decisions Tribunal Act 1997 applies.

ORDERS The decision of the Public Guardian made on 3 May 2011 that the Public Guardian accepts the high level care vacancy offered to Mrs L at the Orange Aged Care Facility (ACF) be affirmed.

reasons for decision

Introduction 1GENERAL DIVISION (L GOODCHILD (JUDICIAL MEMBER)): Mrs L is a 99 year old woman (DOB 19.06.1912) who is currently residing in hostel accommodation in Sydney ("the Sydney facility"). She has 3 children, a daughter - the applicant ACV, a second daughter the second respondent ACX and a son. 2Mrs L has been under guardianship since May 2000. The orders have been renewed and varied on a number of occasions. Mrs L is also subject to a Financial Management Order that was made on 7 August 2000. In a Guardianship Order dated 17 April 2008, the Public Guardian was given the authority to make decisions on behalf of Mrs L in relation to the functions of accommodation, healthcare, medical and dental consent and services. 3On 3 May 2011, the Public Guardian made a decision about Mrs L. The decision was: The Public Guardian accepts the high level care vacancy offered to Mrs L at the Orange Aged Care Facility (ACF). On 12 May 2011, following an internal review conducted at the request of ACV, the decision of the Public Guardian was affirmed. It was noted in the internal review the following: "Mrs L is a very elderly woman with a significant cognitive impairment, reduced mobility and impaired vision. Moving to a new facility in a new location which is unfamiliar to her, and to be surrounded by people with whom she is unfamiliar is not without some risks. However, these risks are reasonably manageable and must be considered in relation to the considerable potential benefits to Mrs L arising from the move. Mrs L will be located in a facility which is better staffed and better equipped to meet her increasing physical care needs. She will have greater access to her daughter who will be able to visit several times a week, if not daily. This will enable greater community access and access to environments to which Mrs L has a stated sentimental attachment. The balance between risks and benefits are weighed in favour of Mrs L moving to the facility in Orange." 4The decision was stayed on 20 May 2011. On this day, ACX was joined as a party. 5The preferred position for ACV is that Mrs L remain at the Sydney facility where it is contended by ACV "she is being properly cared for" until a vacancy becomes available in "B" which is the high care unit at the Sydney facility or she moves to a high care room at another Sydney facility. 6The Second Respondent, ACX, also a daughter of Mrs L, seeks that the decision of the Public Guardian to move her mother to Orange be upheld. ACX resides in a small town near Orange. 7Mrs L has a son who was also consulted for the purposes of the Public Guardian's decision and his view is recorded as being that he would be happy for his mother to leave the Sydney facility. With respect to the move to Orange, it is noted that the son had no specific concerns with that arrangement. 8At the hearing of these proceedings, the Public Guardian urged this Tribunal to uphold the decision made on behalf of Mrs L that she be transferred to a high care vacancy available in Orange.