HXN (Administration)

[2007] TASGAB 6

Guardianship and Administration Board

Burnie

Mr H.X.N., review of Administration order made 15th September 2006

Neutral Citation: HXN (Administration) [2007] TASGAB 6

REASONS FOR DECISION

Melanie Bartlett (Chair)
Leon Peck (Board Member)
Wendy Beveridge (Board Member)

Date Of Hearing: 20 December 2006

Administration – review of order – capacity to make reasonable decisions about his estate – represented person selling goods, acquiring debts – wishes of the person vs ‘best interests’
Guardianship and Administration Act 1995 s 6, 51, 67

1. This is a review of an Administration Order made on the 15^th September 2006 in respect of Mr H.X.N. as a result of which the Board determined that the Public Trustee was to continue as the Administrator for Mr H.X.N..

1. This matter has been before the Board on a number of occasions. An administration order was first made on 2^nd October 2000 which appointed Mr B.T. as the administrator until 2^nd October 2003. Mr B.T. changed employment and on 1^st March 2002 there was a review of the order and Ms M.Q. was appointed as administrator in place of Mr B.T.. On 31^st May 2002 there was a further review and the Public Trustee was appointed in place of Ms M.Q.. On 2^nd October 2003 the three yearly review of the order was heard and the administration order was continued until 1^st October 2006, with the Public Trustee as the administrator, and with a review to be held six months after that hearing. There were a further two reviews on 2^nd April 2004 and 3^rd December 2004 and at both those reviews it was determined that the order would remain in place until 1^st October 2006.

1. On 15^th September 2006 a further review hearing took place and it was determined that the Public Trustee would continue as Mr H.X.N.’s administrator with the order to remain in effect until 14^th September 2009 but with a review of the order to take place within 6 months. There was a further order that the administrator pay any outstanding accounts and then arrange for the pension to be paid direct to Mr H.X.N..

1. On 3^rd November 2006 the administrator sought an emergency order. The Board made an emergency order that day directing the Public Trustee be appointed the administrator of Mr H.X.N.’s entire estate. A further hearing was held on 20^th December 2006 following the making of that emergency order and this is the hearing that is the subject of these reasons for decision.

1. Mr H.X.N. attended the hearing on 20^th December 2006 and he was accompanied by his solicitor, Mr Joseph Peterson. The Public Trustee was represented by Mr Graham Stagg.

1. At the hearing the Board had available to it the following documents:

   1. The application for review filed by the Public Trustee dated 17^th November 2006.
   2. The administration order of 15^th September 2006 and reasons for decision.
   3. Health Care Professional Report from Dr N Barnes dated 18^th July 2006.
   4. Administrator’s reports dated 27^th July 2006 and statement to 31^st August 2006.
   5. Emergency order dated 6^th November 2006.
   6. File note of conversation between Mr Lee Perry of the Board and Mr H.X.N. on 9^th November 2006.

1. In conducting a review of an administration order the Board is required to give consideration to the criteria set out in Section 51 of the Guardianship and Administration Act 1995 (“the Act”). The relevant parts of that section state as follows:

   “(1) If, after a hearing, the Board is satisfied that the person in respect of whom an application for an order appointing an administrator or an order appointing a guardian is made–

   (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 may make an order appointing an administrator of that person's estate.

   (2) In determining whether or not 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.

   (3) The Board must not make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the proposed represented person.

   (4) 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.

   (5) An order made under subsection (1)

   (a) may be made subject to such conditions and restrictions as the Board thinks fit; and

   (b)…

   (6)…”

1. The Health Care Professional Report provided by Dr Nicholas Barnes confirmed that Mr H.X.N. has an intellectual disability which is of a static nature and which has been evident on a long term basis. The Board is satisfied that Mr H.X.N. has a disability.

1. In relation to whether Mr H.X.N. is unable to make reasonable decisions in respect of his financial affairs by reason of that disability and whether there was a need for an order, the Board considered the information provided to it by the Public Trustee and Mr H.X.N. in relation to the circumstances since the making of the order on 15^th September 2006 and the issues surrounding the seeking of the emergency order. It also considered the Health Care Professional Report from Dr Barnes.

1. The Public Trustee reported to the Board that it had come to their attention that soon after the hearing on 15^th September 2006, Mr H.X.N. had arranged a loan for $400 but he had no capacity to repay that loan and had incurred overdrawn fees.  After the making of the emergency order the Public Trustee had contacted Centrelink to arrange the redirection of Mr H.X.N.’s pension to them. However, there had been a delay in this occurring and one pension had been paid into Mr H.X.N.’s account. The Public Trustee was unaware of this and paid out $300 to Mr H.X.N. but Mr H.X.N. also withdrew the whole pension payment from his account.

1. There were also still issues in relation to the contract Mr H.X.N. had with Radio Rentals. The goods have been returned to them but as at 15th December there was still $177 outstanding. Mr H.X.N. stated it was $102 which was outstanding and said that the Public Trustee had breached the contract by returning the goods.

1. Mr H.X.N. indicated that he had used the loan funds of $400 to buy a TV but that he no longer had that TV as he had sold it, along with other items, to a second hand dealer and had used the $30 he got for the TV to buy groceries. Mr H.X.N. blamed the Public Trustee for the overpayment of the $300 and said he had had to sell the TV because he didn’t think he was going to be paid by the Public Trustee and he needed money for groceries. Mr H.X.N. later indicated that the TV may only have been pawned and that it may be redeemable if he paid $40.

1. Mr H.X.N. also advised that he had sold the car he had bought for $1200 for $50, although he agreed he had spent far more than that on maintenance and repairs to the car and still owed the vendor of the car $500. He acknowledged both the purchase and this sale were not good deals.

1. Mr H.X.N.’s solicitor indicated that the debt to the Collection Agency had been resolved and the Public Trustee advised that the debt of $227.50 to Housing Tasmania had been forgone. Mr H.X.N. advised the debt of $1,100 to Telstra had also been forgone, but he is unable to open another account with Telstra or with Optus. Mr H.X.N. initially indicated he had no phone, but then amended that statement to be that he had no mobile phone and he had a landline on a pay-as-you-go basis.  He has Aurora on a pay-as-you-go basis also, and has his rent deducted from his pension.

1. The view expressed by the Public Trustee was that given Mr H.X.N.’s inability to manage his funds, the Public Trustee needed to be the administrator with full control because it was not a situation where supervision was realistic or feasible. Mr H.X.N.’s solicitor submitted that the Board should return the situation to that of the Order of 15^th September 2006, and he stated that the Board was obliged to make an order that was rehabilitative. He suggested that Mr H.X.N. report to the Public Trustee each month which would provide more than just a supervisory role, but would enable Mr H.X.N. to have some control of his finances.

1. Mr H.X.N.’s wishes were quite clear. He did not want the Public Trustee involved at all with the administration of his finances. He said he had the capacity to manage his affairs himself and was not intending to enter into any further debt or to sell any other items.

1. There was some discussion about the possible input of Disability Services to assist Mr H.X.N. in establishing and maintaining a budget of the amount of cash provided to him by the Public Trustee.  Mr H.X.N. was not interested in this option because it still involved the Public Trustee as his Administrator.

1. The Board gave consideration to all of the information set out above. It was noted that Mr H.X.N. had been given an opportunity under the order of 15^th September 2006 to exercise more autonomy over his financial affairs, but within 2 months the Public Trustee sought an emergency order. The Board concluded that Mr H.X.N., whilst certainly beginning to understand and develop financial responsibility, has not demonstrated that he has the capacity to manage his affairs on his own and still requires the assistance of an Administrator.  Mr H.X.N. does not understand that he has finite resources which need careful management and he has not demonstrated an ability to make sound decisions regarding his income and assets. These inabilities arise from his disability and there is a need for an Administrator to be appointed.

1. The Board did consider that it would be appropriate for the Public Trustee to liaise with Mr H.X.N.’s service providers to put in place a structured programme for budgeting and financial management to assist Mr H.X.N. to achieve a greater understanding in relation to managing his finances and this may assist him to have a greater degree of independence.

THE BOARD ORDERS

1. That The Public Trustee continue as administrator of the estate of the represented person.

2. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.

3. The administrator is directed to liaise with the represented person’s service providers to put in place a structured programme for budgeting and financial management of his finances and report to the Board within 3 months of completing the programme.

4. That the order remains in effect until 14 September 2009.

Melanie Bartlett         Wendy Beveridge  Leon Peck

CHAIR  BOARD MEMBER  BOARD MEMBER

7th June 2007