CDJ v Public Guardian [2015] NSWCATAD 275

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CDJ v Public Guardian [2015] NSWCATAD 275 Hearing dates: 25, 26 November, 14 December 2015 Date of orders: 30 December 2015 Decision date: 30 December 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: S Leal - Senior Member Decision: The decision under review is varied Catchwords: GUARDIANSHIP - Review of decision as to access – welfare and interests of the person subject to guardianship – decision varied. Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Guardianship Act 1987 NCAT Administrative and Equal Opportunity Division Procedural Direction 5 Cases Cited: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 P v NSW Trustee and Guardian [2015] NSWSC 579 Category: Principal judgment Parties: CDJ (Applicant) Public Guardian (Respondent) F Ainsworth (Guardian Ad Litem) Representation: Counsel: S Steirn (Applicant) M Higgins (Respondent)

Solicitors: Clinch Long Letherbarrow Lawyers (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 1510526 Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 applies.

REASONS FOR DECISION

Background 1. CJM is a 91-year-old woman who suffers from advanced Alzheimer's Disease, chronic renal disease and congestive heart failure. Since 2012, the Public Guardian, who is the respondent in this matter, has been her guardian. On 22 June 2015, the guardianship order was renewed for a further three years. ANZ Trustees Limited have been CJM's financial managers since 2012. CJM lives at home where, since 28 April 2014, she has been receiving 24-hour care. 2. From 2003 to 29 July 2015, the applicant lived with CJM in CJM's apartment. The applicant's late husband also lived there from 2003 until his death in July 2014. 3. On 28 May 2014, the Public Guardian requested the applicant to vacate the premises to enable carers for CJM to use the apartment's second bedroom in order to provide the 24-hour care required by CJM. The Public Guardian continued to make requests for the applicant to vacate the premises, culminating in an access decision on 27 July 2015 denying the applicant access to CJM for a period of six months. 4. It is this access decision that is the subject of the application for review now before the Civil and Administrative Tribunal ('the Tribunal'). 5. Dr Ainsworth has been appointed by the Tribunal as the guardian ad litem in accordance with s45(4) of the Civil and Administrative Act 2013. The role of a person appointed as a guardian ad litem is to be a "best interests" representative for the person. That means that the guardian ad litem is to conduct the proceedings in a way he or she considers to be in their best interests rather than on the basis of the person's views or 'instructions'. (NCAT Administrative and Equal Opportunity Division Procedural Direction 5).