ALE v Public Guardian [2012] NSWADT 250

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: ALE v Public Guardian [2012] NSWADT 250 Hearing dates: 14 November 2012 Decision date: 29 November 2012 Before: Judge K P O'Connor, President Decision: Decision under review affirmed Catchwords: GUARDIANSHIP - Review of decision as to Appropriate Care Facility - Decision affirmed Legislation Cited: Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Category: Principal judgment Parties: ALE (Applicant) Public Guardian (Respondent) Representation: In person (Applicant) M Dalla-Pozza, Crown Solicitor's Office (Respondent) File Number(s): 123231

REASONS FOR DECISION 1The applicant has applied to the Tribunal under s 80A of the Guardianship Act 1987 for review of a decision of the Public Guardian to place her mother (Mrs R) in permanent care at the Legacy Aged Care - Norah Head (the facility). 2The applicant is the eldest of Mrs R's three daughters. It is not disputed that she is a person whose interests are adversely affected by the decision (see s 80A(2)(d) as to who can bring applications for review). 3The applicant accepts that her mother needs a managed care environment. The issue is the choice of facility.

Background 4In 2006 Mrs R began to manifest signs of dementia marked at that time by memory loss. She gave an enduring power of attorney to her three daughters. She was widowed at the age of 82 in 2010. At that time she was diagnosed with dementia of the Alzheimer's type. 5Because the sisters could not agree on the future care needs of their mother, the applicant initiated the proceedings that led to the making of a Guardianship Tribunal order on 6 August 2010 for one year under which the Public Guardian was appointed as her statutory guardian with the functions of making decisions about Mrs R's accommodation, health care, medical and dental consent and services. The order was renewed on 8 August 2011 for three years. 6After three periods of short term respite care at the facility during 2011 and 2012, on 25 June 2012, the Public Guardian's case officer, Ms Helen Earlam, made the following decision on behalf of the Public Guardian: To agree to a period of respite at the facility starting 2 July 2012 and to accept, if offered, a permanent placement at that facility. 7On 27 June 2012 the applicant applied for an internal review. The Public Guardian personally confirmed the decision on 19 July 2012. On 20 August 2012 the applicant applied to the Tribunal for external review of the decision. The Tribunal heard the case on 14 November 2012. 8On 2 September 2012 the facility offered a permanent place, and the Public Guardian accepted it. 9The applicant's firm view is that the Norah Head facility is inadequate, and that her mother would be better cared for if she were to be relocated to South Australia to a town near where the review applicant lives. The applicant has lived with her husband on the Yorke Peninsula since 1978. She proposes as the alternative the Elanora Aged Care Facility run by Eldercare (Uniting Church), located at Stansbury on the Southern Yorke Peninsula. As a fall back, she is of the view that another facility in the Lake Macquarie region is preferable to the Norah Head facility - the Whiddons Belmont Aged Care Facility. 10Her two sisters are opposed to any move to South Australia. They each have children, as does the applicant. If their mother were moved to South Australia she would, they consider, be deprived of easy contact with most of her family. She would also be cut off from contact with her old friends in the region. As between Norah Head and the Belmont facility, they prefer Norah Head. 11Following review, the Tribunal is directed to make the correct and preferable decision in all the circumstances, having regard to all relevant material. It may affirm, vary or set aside the decision under review, make a decision in substitution or remit it to the administrator for reconsideration. See generally, Administrative Decisions Tribunal Act 1997, s 63.