HMQ (Review Administration)

[2012] TASGAB 29

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

HMQ – Review of Administration Order

Neutral citation: HMQ (Review Administration) [2012] TASGAB 29

REASONS FOR DECISION

Anita Smith (President)

Date of hearing: 20 September 2012

Administration – review of order on expiry – represented person significantly recovered but still lacking capacity – ‘step-down’ facility in order

Guardianship and Administration Act 1995 s 6, 51, 67, 68

1. On the 25^th September 2009 the Board appointed the Public Trustee as administrator for HMQ for a period of three years.  At that time the Board was satisfied that HMQ had a disability that rendered her incapable of making reasonable judgments about her estate and that she was in need of an administrator.

2. The order will expire imminently, so the Public Trustee sought a review of the order pursuant to section 67 of the Guardianship and Administration Act 1995 (‘the Act’). Section 68 of the Act provides:

   “68. Order after review
   (1) On a review under section 67, the Board may vary or continue a guardianship order or administration order subject to any conditions or requirements it considers necessary or the Board may revoke the order.
   (2) The Board may make such further orders as it considers necessary in order to give effect to an order made under subsection (1).”

3. In reviewing existing orders, it is the practice of the Board to reassess the elements set out in section 51 of the Act. Those elements being whether the person who is the subject of an order:

   (a) is a person with a disability; and
   (b) is unable by reason of the disability to make reasonable judgments 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–

4. The application to review was heard on 20 September 2012.  The hearing was attended by HMQ and her legal representative, Ms. Campbell, as well as two representatives from the Public Trustee.  The Board had before it copies of documents relating to the 2009 hearing, copies of the annual reports submitted by the administrator during the term of the order, a medical report by Dr Warden dated 11 September 2012 and a report by Susan Austin, an Occupational Therapist, dated 5 September 2012. 

5. At the time of the order being made in 2009, HMQ was experiencing the effects of a psychiatric disability.  The Board record notes “depression with psychotic features or major depression” noting that the cause of this may be something organic.   By September 2010 she had recovered to such an extent that the guardianship order made at the same time as the order currently under review was revoked.  However in the recent report Dr Matthew Warden expressed the opinion that:

   “The situation with HMQ has not changed significantly over the last 12 months and whilst she has made some modest improvements, in terms of her day to day living ability she clearly continues to have limited insight into the stresses and problems of everyday life and has very limited ability to cope with these.  It seems to be beyond doubt that she has benefited significantly from the protection of the guardianship board, but despite this she remains vehemently opposed to the intervention.

   This seems to be fundamentally around the fine detail of her arrangement rather than the broad arrangement.  There appear to be ongoing issues from her point of view about the amount of money she is given under the current arrangement.  Whilst we plan to transition HMQ to become independent I think this needs to be a gradual process and one which we have planned to embark on over the next 1 to 2 years.  I remain concerned that HMQ would not cope at the current time without a renewal of this order.”

6. Occupational Therapist, Susan Austin has been providing case management support to HMQ since she was discharged from a residential treatment facility in 2010.  Her report echoed the sentiments in Dr Warden’s report.  She noted that HMQ has made significant improvements in her mental health, but like Dr Warden, she expressed the need for a gradual and cautious approach to the withdrawal of the Public Trustee as administrator over the next one to two years.

7. HMQ’s estate consists of modest savings of approximately $7000.00 and a house in Hobart of significant value. She receives income from Centrelink benefits and also from a superannuation fund. The Public Trustee’s reports, like Dr Warden’s and Ms. Austin’s, noted a remarkable level of improvement but that she still requires a level of guidance from her support network. The Board was satisfied that the elements in section 51 were made out on the basis of the reports.

8. At the hearing, HMQ independently and through counsel expressed a firm wish for the revocation of the order.  She was extremely well presented and articulate.  Her performance in the hearing validated the reports of her progress and rehabilitation. 

9. The Board noted HMQ’s wish, but balanced this against the reports noted above which were unanimous in concluding that HMQ lacks the capacity for independent management of her estate and still draws benefit from the appointment of an administrator. 

10. The Board proposed to HMQ that the order be renewed on a ‘step-down’ basis.  A ‘step-down’ order would be less restrictive than the current order in that HMQ will receive her income from Centrelink and her superannuation fund directly, but the Public Trustee remains as the administrator to assist with transactions that are above and beyond the day-to-day transactions.  This would be done on a trial basis.  If successful, HMQ could apply for a review to revoke the order.  If the trial is not successful, the Public Trustee can apply to resume management of part or all of HMQ’s income.

11. At the hearing, HMQ and counsel agreed with the imposition of the ‘step-down’ order. In the Board’s view this order best serves the principles in section 6 of the Act. The protection of her best interests is served with the Public Trustee remaining available to assist with major transactions and to monitor the success of the trial. The order also reflects her wishes as expressed at the hearing and is the least restrictive alternative apart from outright revocation of the order.

12. The Board considered that the ‘step-down’ order is the appropriate order to make to reflect the concerns of HMQ’s care team, but also to promote the least restrictive alternative and to go some way towards reflecting HMQ’s wishes.  To ensure that HMQ’s care team is informed of the nature of the trial, the Board wrote to Ms. Austin as follows:

    “Thank you for your report regarding HMQ.

    I enclose a copy of the order that I made today after reviewing the administration order. 

    This order balances HMQ’s desire to have more independence with the cautions expressed by you and Dr. Warden for continuing protections.  HMQ will now have control of her income from both Centrelink and from her superannuation.   The idea is that she has a trial at financial independence with the protection of the administration order as a safety net.

    If you believe that the trial is failing at any stage, you can apply to the Board for a review to reinstate the order as before.   Equally, if you believe at some point that the trial has been successful, you can apply for the full revocation of the order.

    I understand that HMQ may be seeking a more detailed medical assessment and may seek a review of the order based on that assessment.

    You can contact the Board on [phone] if you need any further explanation or access to any of our application forms.  Mr. Lee Perry of this office attended the hearing and will be in a position to assist you.”

13. HMQ and her representative indicated that they may seek an alternative medical opinion about her level of capacity to manage her estate.  Should an alternative medical opinion prove favourable, the Board would accept and list an application to review this order. 

Conclusion:
The Board was satisfied that the represented person

•is a person with a disability, and

•is unable by reason of the disability to make reasonable judgments in respect of her estate, and

•is in need of an administrator;

THE BOARD ORDERS

1. That The Public Trustee continue as the represented person’s administrator.

2. That subject to clause 3 below, the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.

3. That the represented person is to be responsible for her income from her superannuation and pension entitlement, including any matters relating to the review, management or expenditure of such pension

4. That the order remains in effect to 19 September 2015.

Anita Smith
PRESIDENT

Request for statement of reasons received: 3 October 2012

Reasons delivered: 4 October 2012