NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: SPQ [2016] NSWCATGD 42 Hearing dates: 19 September 2016 Date of orders: 19 September 2016 Decision date: 19 September 2016 Jurisdiction: Guardianship Division Before: A Suthers, Senior Member (Legal) Dr M Wroth, Senor Member (Professional) L Porter Decision: 1. A guardianship order is made for Ms SPQ. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 3 years from the date of this order. 4. This is a limited guardianship order giving the guardian custody of Ms SPQ to the extent necessary to carry out the services function. Catchwords: GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – need for an order – no family or advocate – access to NDIS – nominee provisions – NDIS first and second planning processes – transfer of Ageing, Disability and Home Care accommodation service to non-government sector – Public Guardian appointed Legislation Cited: National Disability Insurance Scheme Act 2013 (Cth), s 18; Part 2, Part 5 Guardianship Act 1987 (NSW), ss 4, 14(2) National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth), rule 2.1 National Disability Insurance Scheme (Nominees) Rules 2013 (Cth) Cases Cited: IF v IG [2004] NSWADTAP 3 KCG [2014] NSWCATGD 7 Texts Cited: National Disability Insurance Agency, "Developing your NDIS plan" myplace.ndis.gov.au/ndisstorefront/html/sites/default/files/Fact%20sheet%20-%20Developing%20your%20NDIS%20plan.pdf accessed 19 September 2016 Category: Principal judgment Parties: Ms SPQ (subject person) Mr OZN (applicant) The NSW Trustee and Guardian The NSW Public Guardian Representation: Nil File Number(s): 4205 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, for three years, to make decisions for Ms SPQ about services issues. Background 1. Ms SPQ is a 45-year-old lady with an intellectual disability, who lives in fully-supported care in NSW. Ms SPQ is unable to communicate verbally and is totally reliant on others to assist her in all activities of daily living. 2. The Tribunal first made a guardianship order for Ms SPQ in 1992. Since then, many orders have been made in relation to Ms SPQ by the Tribunal. The last guardianship order made by the Tribunal for Ms SPQ lapsed in 2015. 3. Ms SPQ has no continuously involved family or advocate and Mr OZN, a support worker for Ms SPQ, applied for a guardian to be appointed to make decisions for Ms SPQ as she transitions into the National Disability Insurance Scheme (NDIS). What did the Tribunal have to decide? 1. The Tribunal had to decide: 1. Does Ms SPQ have a disability which prevents her from being able to make some important life decisions? 2. Should the Tribunal make a guardianship order and if so, what order should be made? 3. Who should be the guardian? 4. How long should the order last? 1. In deciding whether to make a guardianship order, the Tribunal must consider all relevant factors, including those listed in section 14(2) of the Guardianship Act 1987 (NSW). These relate to the views of Ms SPQ, any spouse and unpaid carer, preserving family relationships, preserving cultural and linguistic environments, and the practicability of services being provided without a guardianship order. The Tribunal is guided by the principles in section 4 of the Guardianship Act, and views Ms SPQ's interests as its paramount consideration. The Tribunal ultimately has a broad discretion whether to make a guardianship order (IF v IG & Ors [2004] NSWADTAP 3). Does Ms SPQ have a disability which prevents her from being able to make some important life decisions? 1. Ms SPQ has a severe intellectual disability and is non-verbal. This disability prevents her from being able to make important life decisions. Should the Tribunal make a guardianship order? 1. The Tribunal was not able to obtain any views from Ms SPQ and she has no involved family or unpaid carer. 2. With the implementation of the NDIS, Ms SPQ will shortly transition from her support being funded by Ageing, Disability and Home Care NSW (ADHC) to the funding coming from the NDIS. 3. To become a participant in the NDIS requires an access request from Ms SPQ "or someone who is able to act on [her] behalf" (National Disability Insurance Scheme Act 2013 (Cth), section 18, and the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth), rule 2.1). The NDIS Operational Guideline – Gateway – Making an access request says that someone making an access request on behalf of another person must have "authority to sign" the request for the person as a guardian, person with parental responsibility for a child, agent or having otherwise been appointed as the person's representative. 4. In KCG [2014] NSWCATGD 7, at [32] and [34], the access request had been signed by a group home manager and the Special Counsel for the National Disability Insurance Agency (NDIA) said that, in practice, generally anyone can sign an access request on behalf of a prospective participant. 5. In relation to Ms SPQ, Mr DCH, who stood in for Mr OZN at the hearing, said that, in the absence of an involved family member, a guardian should be appointed to make the access request and represent Ms SPQ in the development of her participant plan of supports. 6. The Tribunal noted that, under the nominee provisions in the NDIS legislation, the NDIA could appoint a nominee to represent Ms SPQ in the development and periodical review of her participant's plan of supports. With the approval of the NDIA, a participant or their nominee may also manage a participant's NDIS funding (NDIS Act, Parts 2 and 5, National Disability Insurance Scheme (Nominees) Rules 2013 (Cth)). This has not happened. 7. Mr DCH advised that, with the privatisation of the services ADHC provides later this year, there will be significant change in the way Ms SPQ receives her support. 8. There is no guarantee, for example, that those who have supported Ms SPQ for some time and know her well, will remain in a role where it would be possible or appropriate for them to act as her nominee, even if they were willing to do so. Currently, the staff who support Ms SPQ have not received training in relation to whether acting in that way is within their role. 9. With Ms SPQ having no family member or other advocate, apart from paid service providers, the Tribunal was satisfied that a guardian was needed to make decisions and advocate for Ms SPQ, both through the NDIS eligibility and planning process and the parallel current process of ADHC tendering out its services to the non-government sector. 10. In relation to the NDIS, Ms SPQ's first and second plans will be crucial to her ongoing interests and inclusion in the community. The first plan may be focussed on her current needs and the supports which are currently in place, to give the person time to think about longer term needs and goals before the plan is reviewed in a year (National Disability Insurance Agency, "Developing your NDIS plan" myplace.ndis.gov.au/ndisstorefront/html/sites/default/files/Fact%20sheet%20-%20Developing%20your%20NDIS%20plan.pdf accessed 19 September 2016). 11. Ms SPQ has complex care needs. It is important that she have someone to advocate for her and make decisions through this process. 12. Ms Amanda Godbold, from the Public Guardian, agreed that the Tribunal should make an order. 13. The Tribunal was clear that guardianship was needed to protect Ms SPQ's interests through the NDIS's first and second planning processes and the transfer of her current accommodation service to the non-government sector. Who should be the guardian? 1. In the absence of any alternative, the Tribunal appointed the Public Guardian. How long should the order last? 1. In the circumstances, the Tribunal was satisfied that a guardianship order should be made for three years. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 June 2018