BHQ (Administration)
[2018] TASGAB 20
•31 August 2018
GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON
BHQ (Administration) [2018] TASGAB 20
STATEMENT OF REASONS
Before: Virginia Jones (Chair)
Fred Lester
Cliff Partridge
Administration application – disability and capacity – dated medical reports – no current diagnosis of disability – presumption of capacity – application dismissed
Guardianship and Administration Act 1995
On Friday 31 August 2018 the Guardianship and Administration Board (‘the Board’) heard an application for administration for BHQ (‘the proposed represented person’). The application was filed by KQ, the mother of the proposed represented person (‘the PRP’).
The following persons attended the hearing:
KQ, the applicant (mother);
Ms Fiona Sullivan, The Public Trustee; and
Ms Rebecca Smith, The Public Trustee.
The Board had the following documents before it:
Application for Administration dated 16 July 2018;
Statement in lieu of Health Care Professional Report of KQ dated 16 July 2018;
Medical report of Cheryl Dawtrey and Wendy Holder dated 1 September 2005;
Medical report of Dr Eric Ratcliff dated 4 October 2005;
Northern Adult Community Mental Health Service Occupational Therapy Assessment Report, undated;
Report of Nicanor Reyes dated 5 September 2008;
Letter of Leiemma Canty dated 9 August 2009;
CBA bank report dated 27 July 2018.
As a result of the hearing the Board was not satisfied the PRP was a person with a disability, or was by virtue of a disability unable to make reasonable judgments in respect of her estate. The application was therefore dismissed.
The applicant has requested a Statement of Reasons in relation to the Board’s decision.
Requirements of the Guardianship and Administration Act 1995
When the Board determines an application for the appointment of an administrator it needs to be satisfied of the matters in section 51 of the Guardianship and Administration Act 1995 (‘the Act’). They are, that the PRP:
(a) is a person with a disability; and
(b)is unable by reason of the disability to make reasonable judgements in respect of matters relating to all or any part of his or her estate; and
(c) is in need of an administrator.
The Board must also balance the principles in section 6 of the Act, which are:
(a)the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and
(b)the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
(c)the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.
Is the proposed represented person a person with a disability?
Section 3 of the Act defines disability as follows,
“[It] means any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner”.
Filed in support of the application were a number of medical reports and occupational therapy assessments dated from 2005 – 2008.
10. The report of Ms Cheryl Dawtrey and Ms Wendy Holder identified that in 2005 the PRP had difficulties, primarily in the area of communication eg following instructions, and tending to take things literally. At the time, the PRP’s most significant stressor was her inability to communicate effectively.
11. It seems that in 2005 the applicant thought the PRP had Asperger’s Disorder. It is noted in Dr Ratcliff’s report that ‘her mother is convinced that she has Asperger’s Disorder as a result of advice from a speech pathologist and her own research on the matter’.
12. However in his report Dr Ratcliff stated the PRP did not entirely meet the criteria for a diagnosis of Asperger’s Disorder, and was of the view the appropriate diagnosis was Pervasive Developmental Disorder, with language difficulty being the dominant feature.
13. The Northern Adult Community Mental Health Service Occupational Therapy Assessment Report noted the PRP presented with a confusing diagnostic presentation, and confirmed difficulties with communication.
14. The Report of Ms Nicanor Reyes assessed the PRP’s ability to perform physical activities of daily living tasks. It was not relevant to the application.
15. The medical reports were indicative of the PRP possibly having a disability, however they were dated. They were 10 to 13 years old. There was no update, nor recent report from a health care professional as to the PRP’s condition. There was no current diagnosis of a disability.
16. Evidence was received at the hearing from the applicant. She agreed the reports were quite old, and there was nothing more recent.
17. In her Statement in lieu of a Health Care Professional Report the applicant stated the PRP’s general practitioner ‘only treats her for physical ailments’, and the Launceston General Hospital did not agree to complete the health care report required without the PRP’s participation and permission.
18. The PRP was not present at the hearing and there was no evidence of her views or wishes.
19. Given the age of the reports, and there not being an update or current diagnosis, the Board was not satisfied the PRP has a disability.
Is the proposed represented person incapable by reason of the disability of making reasonable judgments?
20. While the Act does not specifically state that all people are presumed to have capacity to make their own decision, a presumption of capacity exists at common law. The Board had no up-to-date evidence before it that the PRP was incapable of making reasonable judgements about her financial estate by virtue of a disability.
21. As the hearing progressed it became clear the reason for making the application was the applicant’s concern for the PRP because the PRP was allegedly taking drugs. The applicant gave evidence that in her view drug taking was taking over the PRP’s life.
22. The applicant’s concern was the PRP was making poor choices when it came to her finances. However those choices were associated with, or as a result of, the PRP taking drugs, rather than being unable to make reasonable judgments by reason of a disability.
23. The Board was not satisfied the PRP by reason of a disability was incapable of making reasonable judgments in respect of matters relating to her estate.
Is the PRP in need of an administrator?
24. The Board did not need to consider whether there was a need for an order, given its determination that the PRP did not have a disability.
Conclusion
After hearing an application for an administration order in respect of BHQ:
The Board was not satisfied that the proposed represented person
is a person with a disability, and
is unable by reason of the disability to make reasonable judgements in respect of her estate.
THE BOARD ORDERS
That the application for administration is dismissed.
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