LBL [2016] NSWCATGD 22 is a decision concerning an application for guardianship, partly against the background of Ms LBL transitioning from her accommodation and support being funded by ADHC to it being funded by the National Disability Insurance Scheme.

The tribunal ultimately took a ‘least restrictive’ approach and did not see a need to appoint a Guardian. In view  of the NDIA’s practices in relation to access requests and development of participant plans, and in view of the availability of Mrs NAH to informally support Ms LBL with the NDIS and ADHC and to act as person responsible for her, the Tribunal saw it as practicable for services to be provided to Ms LBL without a guardianship order: see [31].

The Tribunal noted at [13] – [17]:

In more recent cases, the Tribunal has been getting inconsistent evidence in relation to whether or not the NDIA seeks a guardian for a person with major decision-making disability and who does not have an involved family member or advocate to support the person through the NDIS processes.

The Tribunal therefore obtained input from the NDIA to the current hearing. The Tribunal received a submission headed Representation mechanisms for participants with significant cognitive impairment and Ms Lee Davids, Director Advisory Team NDIA, attended the hearing.

The written submission said that the NDIS access request form (“ARF”) did not limit who could request access on behalf of a prospective NDIS participant and “the agency applies a common-sense test to an ARF and processes the request if it appears to be provided by a person with the prospective participant’s best interests in mind”. In the hearing, Ms Davids said that an access request from a group home staff member would not be appropriate but a request from a senior officer of the service provider organisation would be acceptable.

The submission went on that, where a participant appeared unable to understand issues central to the development of a participant’s plan of supports, the NDIA would first consider whether the person could be supported to understand the situation and express their wishes. If that was unsuccessful, the NDIA would not generally expect a guardian to be appointed for a person who lacked capacity. The NDIA would rely on the participant’s informal support network, which Ms Davids said comprised people like family or close friends. The NDIA relies on service providers to say who is in the person’s informal support network.

The submission said that as last resort the NDIA may appoint a nominee in preference to considering guardianship. Ms Davids said that the NDIA seldom appointed nominees and did not appoint service providers as nominees due to their conflict of interest.

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