A recent law case has ruled that a staff member of the Ageing and Disability Commission (ADC) can make an application for a guardian to be appointed for a person with a disability in NSW.
What is the ADC?
The ADC commenced operation on 1 July 2019 with the responsibility to respond to reports of elder abuse, neglect, and exploitation of adults with a disability and older people in NSW.
The NCAT ruling
In May 2020 the NSW Civil and Administrative Tribunal (NCAT) was asked to determine if the ADC could bring applications for guardianship and financial management in the case of EYN [2020] NSWCATGD 10.
The case involved an application by the Commissioner of the NSW ADC (via Mathew Munro, its Manager of Investigations), to appoint a guardian and financial manager for a person identified as EYN (identity hidden).
People able to make an application to the Tribunal are:
- the subject of the application
- the Public Guardian (for a guardianship application) or the NSW Trustee and Guardian (for a financial management application)
- any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.
The Tribunal ruled that applying to the Guardianship Division of NCAT is one of the Commissioner’s functions. The Tribunal referred to section 12(b) of the Ageing and Disability Commission Act (ADC Act) which says that a function of the Commissioner is to take further action that the Commissioner considers necessary to protect the adult from abuse, neglect and exploitation, including by making an application to a court or tribunal in respect of the adult.
So, it was part of the Commissioner’s role, but the Tribunal had to determine these questions:
- Does the ADC Commissioner qualify as a person with a genuine concern for the welfare of a person?
- Could Mr Munro make the application on behalf of the Commissioner?
In answer to the first question, it was noted that the office of the Commissioner is held by a person. Based on the information the ADC had obtained, the Commissioner held a genuine concern for EYN’s welfare.
The Tribunal determined that the ADC Commissioner qualified as a person with a genuine concern for the welfare of a person and could bring an application for guardianship and financial management orders.
On the second question, the Tribunal said Section 11 of the ADC Act authorises the Commissioner to delegate functions, which he did when he directed Mr Munro to make the application on his behalf.
The Case of EYN
EYN was a 79 year old woman living in an eastern suburb of Sydney. She was brought to the attention of the ADC as an older person with dementia:
- who was possibly being exploited by her neighbours
- who had admitted to giving away money to people in her community
- whose 3-storey home might no longer be appropriate for her needs
- who had missed medical appointments and declined aged care services.
FZJ and Ms Z were neighbours of EYN who helped her with everyday tasks, but the Tribunal found that they did not qualify as carers. There was disagreement between FZJ and Ms Z, with FZJ refusing Ms Z to have any contact with EYN and Ms Z accusing FZJ of isolating EYN for his own benefit.
FZJ claimed to be EYN’s best friend and to have been her carer for the past month. He had made an application to Centrelink to receive a carers’ pension, claiming to provide 20+ hours of care to EYN per week. He spent time with EYN every day and was preventing other neighbours from having any contact with her.
There were concerns that FZJ and other male friends had been visiting EYN frequently (despite social distancing requirements during COVID-19); that the men took EYN to a service station or the bank to withdraw money; and that FZJ had told EYN she had a debt that she did not have.
NCAT rulings on lack of capacity and guardianship appointments
Lack of capacity
Medical records, as well as the evidence of people involved in EYN’s daily life, indicated that EYN had short-term memory impairment and a cognitive impairment that restricted her ability to access, evaluate, and recall important information.
She did not have the capacity to make decisions about her lifestyle and her finances.
The Tribunal needed to appoint an independent decision maker who could take into account the objective facts and decide where EYN should live, what services she required, what medical/dental treatment she should receive, and which people should have contact with EYN.
Who to appoint?
FZJ applied to be appointed as EYN’s guardian and financial manager, however the Tribunal said he was not suitable because, due to EYN’s impaired memory and his strong involvement in her life, FZJ had influence over EYN. This was demonstrated in the Tribunal hearing, where he persistently told EYN what to say even after he was asked not to. He had taken on the role of spokesperson for EYN, was preventing others from having any contact with her and adopted an aggressive manner that was not in EYN’s best interests.
The Tribunal found a conflict of interest. One of the issues the Tribunal had to determine was whether EYN should move to a smaller residence because her health prevented her from going up to the third floor of her home. FZJ said that it didn’t matter because he, as her carer, was entitled to use the bedroom on the third floor. The Tribunal did not support his claim for the room and said that his interest in the room meant that he had a personal interest in the decision of whether EYN should move to a smaller place. If she did, he would lose the room.
The Tribunal appointed the Public Guardian as guardian for a period of 12 months and the NSW Trustee and Guardian as financial manager.
If you or someone you know needs assistance with NCAT hearings, talk to Catherine Henry’s expert Elder Law team. To discuss your needs, call us on 1800 874 949 or fill in the form below and we will be in touch.
*The material provided in our information sheets is for general knowledge only and is not a substitute for independent legal advice. For further information about the issues affecting you, please contact one of our experienced and professional lawyers for expert advice.
