BKC (Administration)
[2014] TASGAB 10
•7 July 2014
GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON
BKC – Application for Administration
BKC (Administration) [2014] TASGAB 10
REASONS FOR DECISION for the appointment of The Public Trustee as Administrator
Rodney Lester (Chair)
Rowena Holder (Member)
Grant Kingston (Member)
Date of hearing: 9th May 2014
Administration – need - least restrictive option
Guardianship and Administration Act 1995, s 3(1), 20(1)(a), 20(1)(b), 20(1)(c), 51(1)(a), 51(1)(b), 51(1)(c), 51(2), 51(4)
- The hearing was in respect of BKC, and came about as a result of an application for administration from her sister, TC.
- The hearing was held at the Magistrates Court in Launceston on Friday, May 9th 2014. It was attended by BKC, TC, Michelle Knowles and Michael Walsh, (from the Public Trustee), Sasha Wong, (from Legal Aid and representing BKC), DD, (BKC’s aunt), Paul Henrys, (BKC’s case manager), and Suzanne Cowell, (social worker from Northside Mental Health Clinic).
- At the commencement of the hearing the Chairman outlined the processes that the Board would follow, and explained the criteria that needed to be established for the appointment of an Administrator. The information and reports available to the Board were detailed and the Chairman also explained that the Board had the ability to explore the possible need for a Guardian at the hearing notwithstanding the fact that the application was for Administration only.
Disability – sections 3(1), 20(1)(a) and 51(1)(a)
4. The Board had 3 health care professional reports to consider when it looked at the issues of disability. The reports were from Dr Monique Mason, (LGH), Franco Giarraputo, (Psychiatrist Northside), and Dr Suling Tan, (Northside). The medical reports stated that BKC had Dysthymia, substance dependence, and various personality and behavioural disorders including hoarding, anxiety and OCD behaviour. It was considered that the disabilities were fluctuating or deteriorating.
5. There was no evidence introduced challenging the proposition that BKC had the disabilities as outlined in the health care professional reports, and all at the hearing that knew her supported the view that BKC suffered from these disabilities.
Incapacity – sections 20(1)(b) and 51(1)(b)
6. All of the health care professional reports addressed the issue of capacity. Dr Mason stated ‘Her ability to prioritise financial issues is significantly impaired due to being unable to address her hoarding and organise her thoughts.’ Franco Giarraputo was of the view that BKC’s disability impacted upon her impulse control and planning and reasoning skills. He said in his report ‘…BKC’s compulsive hoarding behaviour continues to significantly impact her health and she has been unable to make decisions in regards to resolving the situation.’ Dr Suling Tan stated ‘…she is unable to participate appropriately in discussions or planning of her finances – this has resulted in significant accumulated debt and risk of losing her mother’s inheritance.’
7. BKC’s family and support staff present at the hearing were all of the view that because of her disability she was incapable of making reasonable decisions, and in fact in many instances BKC appeared to be incapable of making any decisions at all.
8. There was no evidence introduced that challenged the proposition that BKC lacked capacity to make reasonable decisions about her accommodation, the supports she needed to maintain herself in that accommodation, and the financial consequences that arose from her current circumstances.
9. Mr Wong did put forward the view that BKC had demonstrated a capacity to manage her pension income, however this view did not receive any support from those that had been involved in BKC’s care.
10. The Board was of the view that the only available conclusion was that BKC had a disability, and as a result of that disability lacked the capacity to make reasonable decisions in relation to matters concerning her accommodation and the support services required to maintain her in that accommodation. The Board was also of the view that BKC’s current dire financial circumstances were a direct result of her incapacity to make reasonable decisions because of her disabilities.
Need – sections 20(1)(c) and 51(1)(c)
11. There were two main areas of need that had been identified in the papers and at the hearing. The first area was surrounding BKC’s accommodation. BKC currently had a rental flat she was residing in. She was also maintaining her late mother’s house, in which she had a 50% interest, and she was keen to move into that house. Information given to the Board at the hearing suggested that BKC would not have the lease renewed on her current flat due to the squalid state of the accommodation and BKC’s inability to make appropriate decisions about the cleaning and care of the property. It was also indicated that there would in all likelihood be a significant cost to clean and restore the property. There was also some significant concerns raised by BKC’s support staff about the suitability of her late mother’s house for BKC’s long term needs, and if BKC were to reside there what supports she would need in place for it to be a viable option. The Board was of the view that these circumstances were such that a limited Guardianship order to address these areas of need was appropriate. As the Guardianship order was not contentious it is not at this stage necessary to go into any further detail on it.
12. The second area of need was clearly the financial circumstances that BKC found herself in. She had accumulated significant debts, and although it was unclear as to the exact extent of these debts it appeared likely that when amounts owing to her sister were included BKC probably owed between $15,000 and $20,000. Of immediate concern was the fact that some creditors were threatening action to recover the amounts owing and there was a likelihood that in the near future BKC would be confronted with legal action to recover monies owing by her. It was clear to the Board that BKC’s disability meant that she would be incapable of effectively managing this process.
13. There were suggestions at the hearing that BKC’s financial problems were a direct result of her bearing costs associated with two residences – the flat she was currently living in as well as her interest in her late mother’s house. With her income being a disability support pension along with some rent and pharmaceutical assistance this appeared to be a perfectly reasonable proposition – it would have been challenging to maintain one residence on income of around $850 per fortnight, let alone two.
Least restrictive – sections 51(2) and 51(4)
14. There are effectively two times when the Board is required to consider the issue of least restrictive when dealing with an administration order. The first time is under section 51(2), which states:
‘In determining whether a person is in need of an administrator of his or her estate, the Board must consider whether the needs of the proposed represented person could be met by other means less restrictive of the person’s freedom of decision and action.’
In this instance the Board was of the view that there were no alternate means that would address BKC’s circumstances. Both BKC’s family and support workers had been trying for some years to assist her with her finances and decision making around her estate. Notwithstanding these attempts BKC’s situation was such that she had accumulated debts that were significant, especially given her income, and these debts were increasing with no apparent efforts from BKC to bring them under control. Informal support of BKC with respect to her finances had clearly failed and the only alternative likely to address the risk to her estate was the appointment of an administrator. The Board was comfortable that the issue of least restrictive did not mean there was no need for an administrator under section 51(1)(c). At the time of the hearing it was the understanding of the Board that this position was accepted by all those present including BKC.
15. The second occasion where least restrictive needs to be considered is under section 51(4) and occurs after the decision to appoint an administrator has been made. Section 51(4) states:
‘Where the Board makes an order appointing an administrator of a person’s estate, the order is to be that which is the least restrictive of that person’s freedom of decision and action as is possible in the circumstances.’
It is this section where the contention around the Board’s decision appears to be centred.
16. Mr Wong put the proposition to the Board that BKC had demonstrated an ability to manage her pension effectively and that to comply with the least restrictive requirement in the legislation the pension income should be specifically excluded from the administration order. He stated that an administration order that excluded part of a person’s estate was necessarily less restrictive than an order which included all of the estate.
17. The Board considered Mr Wong’s position and was of the view that whilst perhaps superficially attractive, it was at best impractical. No view was formed on BKC’s ability to manage her pension income in isolation as it was felt unnecessary to address this issue at this stage. Having said that the Board noted that this proposition was contrary to the comments on capacity in the three health care professional reports, as well as being at odds with the positions held by BKC’s family and support workers. The overriding issue was that there were substantial debts likely to result in creditors taking legal actions to recover funds in the near term. There were only two realistic approaches to satisfying these actions, and they both involved making arrangements with creditors to repay the debts. The first approach was to arrange to utilise some of BKC’s income to satisfy the debts over a period of time. If this income had been excluded from the administration order it was likely that this option would have been unavailable to the administrator. The second approach was to realise some of BKC’s assets to satisfy creditors. Effectively this would have meant selling BKC’s share in her late mother’s house, which BKC strongly opposed.
18. The Board came to the view that there is in section 51 at least an implicit requirement that any administration order should be capable of meeting the needs of the represented person. The Board felt that Mr Wong’s proposition, if implemented, would be incapable of meeting BKC’s needs. It would be more likely to precipitate the sale of her interest in her late mother’s house than it would be to protect that interest. It was felt that there was no realistic option but to make an administration order that covered all of BKC’s estate.
19. Whilst the Board determined to make the administration order for 3 years it did comment at the hearing that in the event the administrator had managed to satisfy the debts prior to expiration of the order it could be appropriate to seek a review of the order. At this point in time, with the threat posed by accumulated debt gone, it may be appropriate for the Board to consider Mr Wong’s proposition that BKC had the capacity to manage her pension.
The Board’s Decision:
The Board was satisfied that the represented person
The Board Orders
- Is a person with a disability
- Is unable by reason of the disability to make reasonable judgements in respect of her estate; and
- Is in need of an administrator
That The Public Trustee be appointed as administrator of the estate of the represented person.
That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995
That the order remains in effect until 8th May 2017.
RODNEY LESTER ROWENA HOLDER GRANT KINGSTON
CHAIRMEMBER MEMBER
Reasons delivered 7th July 2014
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