ABJ v Public Guardian [2011] NSWADT 172

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: ABJ v Public Guardian [2011] NSWADT 172 Hearing dates: 16 May 2011, written submissions closed 6 June 2011 Decision date: 18 July 2011 Jurisdiction: General Division Before: C Huntsman, Judicial Member Decision: The decision is affirmed Catchwords: Accommodation, best interests Legislation Cited: Guardianship Act 1987, sections 4, 78, 80A; Administrative Decisions Tribunal Act, so 63 Category: Principal judgment Parties: ABJ (Applicant) Public Guardian (1st Respondent) ACU (2nd Respondent) Representation: ABJ (Applicant in person) R Storman (First Respondent ACU (Second Respondent) File Number(s): 113044 Publication restriction: S126 of the Administrative Decisions Tribunal Act 1997 applies

reasons for decision

Background 1This was an application for review of a decision by the Public Guardian, which was an accommodation decision as to where an elderly gentleman, MMD, should live. The Applicant, ABJ, is the son of MMD. By order dated 12 January 2011 the Guardianship Tribunal appointed the Public Guardian as MMD's guardian , for a period of 12 months, to decide about his accommodation, health care, consent to medical and dental treatment and services. The Guardianship Tribunal found that MMD was elderly (he was 89 years at that time), frail and vulnerable, fully dependent for all activities of daily living, including prompting for eating and drinking, and that he had dementia and required extensive nursing care. The Guardianship Tribunal noted that MMD has four children, and his wife had died four years previously. After the death of his wife MMD had resided with his son, the Applicant, until MMD's admission to St George hospital on 31 October 2010. Hospital staff made an application to the Guardianship Tribunal for the appointment of a Guardian in November 2010. It is said that the application to the Guardianship Tribunal was made because of concerns that MMD required a higher level of care than the Applicant could provide, and that the hospital treating team saw the need for a guardian to be appointed to make decisions about accommodation and services for MMD. As appointed guardian, the Public Guardian made a decision about MMD's accommodation and MMD was subsequently discharged from St George hospital to that accommodation, and he remained at that accommodation at the time of the current proceedings. The Public Guardian's accommodation decision was that MMD should reside with his daughter, ACU. This accommodation decision is the subject of the current review proceedings, as detailed further below. 2The Applicant sought review of the decision of the Public Guardian of 10 February 2011, being an accommodation decision that there be a trial of MMD residing at the home of his daughter, ACU. The application for review was filed on 21 February 2011. The Applicant also applied for a stay of the decision pending review. At proceedings at the Tribunal on 8 March 2011 the application for a stay was refused, and the Tribunal file notes that the Public Guardian was to make a new long-term accommodation decision, before the next Tribunal hearing date, in relation to where MMD would live. 3At the date of the hearing of the current matter on 16 May 2011, the Public Guardian had made a further decision, on 1 April 2011, that MMD continue to reside at the home of his daughter, ACU. At the time of the hearing all parties agreed that the decision under review was the Public Guardian's decision of 1 April 2011. 4At the commencement of the hearing on 16 May 2011 the Tribunal determined that ACU should be joined as a party to the proceedings: the Tribunal was satisfied that ACU had an interest in the proceedings as MMD is residing with her; the Tribunal also noted that ACU's application to be joined as a party was not opposed by the other parties, being the Applicant and the Public Guardian.