CMI (Review Administration)
[2016] TASGAB 2
•15 April 2016
GUARDIANSHIP AND ADMINISTRATION BOARD
Hobart
CMI (Review Administration) [2016] TASGAB 2
REASONS FOR DECISION
Wendy Hudson (Chair)
Date of hearing: 15 April 2016
Review administration - significant improvement in capacity to manage day to day finances – steps to be taken to support independence in lump sum financial management
Guardianship and Administration Act 1995 s.6, 51, 67, 68
On 15 April 2016 the Guardianship and Administration Board (the Board) reviewed an administration order for CMI. CMI’s mother was initially appointed as his administrator by the Board on 27 January 2005 to manage his finances. On 21 January 2011 the Board reviewed the order and determined that CMI was able to manage his day to day finances, the continuing order was limited to his lump sum investment. Upon review on 18 April 2013 the Board made an order that The Public Trustee manage CMI’s estate in full. That order was to remain in effect until 17 April 2016.
CMI and his legal representative, Sarah Campbell, attended the hearing together with Joanne McGuiness from The Public Trustee, Christine Healey, case manager, Community Mental Health and Mr Lee Perry, compliance officer, of the Board.
The Board had before it the following documentation:
· Annual reports and statements of accounts from The Public Trustee
· Health care professional report prepared by Dr Rue Nyakuna dated 6 February 2013
· Health care professional report prepared by Dr M Warden undated but received by the Board on 24 February 2016.
Section 51 of the Guardianship and Administration Act 1995 (the Act) enables the Board to appoint an administrator of a person’s estate if it is satisfied that the person:
(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 of his or her estate.
The Board must also balance the principles in section 6 of the Act which include:
(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.
In reviewing an administration order under section 67 of the Act, the Board will turn its mind to those same considerations before deciding whether to vary or continue an order under section 68 or to revoke the order. The questions for the Board to consider are - whether CMI has a disability, and as a result is unable to make reasonable judgements in respect of matters relating to all or any part of his estate and whether there is an ongoing need for an administrator. The Board must also consider the least restrictive option, what is in the best interests of CMI, and CMI’s wishes.
Does CMI have a disability?
Is CMI unable by reason of his disability to make reasonable judgements about his estate?
Dr Warden who has known CMI for four years, provided an opinion that CMI has schizophrenia, and that it has been evident for 20+ years. Dr Warden indicated that CMI’s disability is fluctuating and worse when he takes illicit drugs.
Both Dr Warden in 2016 and Dr Nyakuna in 2013, were of the opinion that, CMI’s disability results in an impairment of his planning and reasoning skills, impulse control, and makes him susceptible to influence. Although Dr Warden acknowledged that CMI had improved recently, he also highlighted the ongoing risks, noting that there had been times when CMI would have lost all of his available money if an administration order had not been in place. He also noted that CMI was ‘rather grandiose’ about his ability to manage his finances and consequently he had reservations about CMI’s ability to seek and accept advice around managing a lump sum investment. Dr Warden remained concerned about CMI’s drug use, his grandiosity, and the potential for him to spend his money on substances or to be reckless.
CMI did not dispute Dr Warden’s evidence. Ms Campbell advised that CMI had for approximately the past 12 months, been capable of managing his pension. She acknowledged however, Dr Warden’s opinion regarding the impact of CMI’s disability on his decision making and the ongoing risk in relation to CMI’s untested ability to manage his lump sum investment. Given the opinion of Dr Warden, the Board was satisfied that CMI is a person with a disability and is unable by reason of his disability to make reasonable decisions regarding his lump sum investment.
Does CMI need an administrator?
Ms McGuiness confirmed that The Public Trustee had trialled a period where CMI received his pension, arranged Centrepay deductions and managed his day to day finances. Ms Healey noted that about two and half months ago CMI had lapsed, was taking drugs and had been admitted to hospital due to a decline in his mental health, however this event had not led to any issues arising in relation to the management of his day to day finances.
CMI acknowledged that he had lapsed recently but noted that he was no longer associated with the person who had caused him to relapse. He stated that he was able to manage his day to day finances and wanted an opportunity to demonstrate that he also had an ability to manage his lump sum investment. Ms Campbell stated that there was insufficient evidence to support the order being revoked but thought that CMI should be given an opportunity to manage part of his lump sum. Ms Campbell identified the dilemma which CMI faces in providing the Board with evidence that he is able to manage his lump sum. She submitted that CMI should be provided with a $20,000 lump sum, $5000 for CMI to use for a holiday and the balance to be invested by CMI.
CMI indicated that if he had $5000 he would use it for a holiday where he would meet up with his online girlfriend from Ukraine; he said ‘could I please have $500 to take her out to dinner?’ Ms Campbell was not aware of CMI’s girlfriend. In relation to the investment, CMI stated that he wanted to own a house again and that he would make ‘…more high risk investments, to make more money…’.
CMI remains susceptible to influence; as Ms Healey noted, once others heard that CMI’s had a bit of extra cash, he may find that he is put under pressure to give them money. CMI’s idea of spending $500 on a meal with his girlfriend is also consistent with Dr Nyakuna’s view that ‘Brett spends money in a fashion the average person wouldn’t’ and an online girlfriend may create a risk for CMI’s financial situation. Dr Warden also raises concern regarding CMI’s potential to be reckless and has reservations about CMI’s ability to seek and accept advice around his lump sum investment.
Taking all of the above into account, the Board is satisfied that CMI continues to need an administrator but that the order should be varied, limiting it to the management of his lump sum investment, to protect his accumulated funds so they are available to be used for his benefit for the foreseeable future. The Board impressed upon CMI that although for the past 12 months he has been managing his pension, it has been in a supported environment with The Public Trustee having continued oversight, and the next step was for CMI to be responsible for the management of his day to day finances without any oversight.
CMI’s wishes, what is in his best interests and the least restrictive alternative
The Board recognises CMI's wish to manage his own finances; however the Board did not consider that his best interests would in fact be met by the revocation of the order. The Board considered that his best interests would be met with the continuation of the administration order limited to his lump sum investment only. CMI also sought release of $20,000 to enable him to demonstrate his ability to manage his lump sum however the Board was of the view that such a step was not in his best interests. The Board encouraged The Public Trustee to work with CMI to determine the costs for his holiday, to participate in the decision making process in relation to the investment of his lump sum, and to support CMI to increase his knowledge and understanding of managing a larger amount of money.
Conclusion
After hearing a review of an administration order made on 12 July 2012 in respect of CMI, the Board was satisfied that CMI:
·is a person with a disability, and
·is unable by reason of the disability to make reasonable judgements in respect of his estate, and
·is in need of an administrator.
THE BOARD ORDERS
That The Public Trustee continue as the represented person’s administrator.
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 represented person is to be responsible for that part of his estate consisting of his pension entitlement including any matters relating to the review, management or expenditure of such pension.
That the order remains in effect to 14 April 2019.
DATED this 15th day of April 2016.
Wendy Hudson
Chair
0
0
1