HXN (Review Administration)

[2006] TASGAB 13

HXN

GAB No. XXXX

HXN (Review Administration) [2006] TASGAB 13

REASONS FOR DECISION

Melanie Bartlett (Chair)
Leon peck (Board member)
Mary Davies (Board member)

Date of Hearing 15^th September 2006

Administration – review of order after 3 years – represented person seeking more control over his finances – medical evidence in support at variance with factual history

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

1. This is a review of an Administration Order made on 3^rd December 2003 in respect of HXN pursuant to which the Public Trustee was appointed as the Administrator.  The early review was at the request of the Represented Person, although it coincided with the normal 3 year review which was required prior to 2^nd October 2006.

2. This matter has been before the Board on a number of occasions in the past.  An Administration Order was first made on 2^nd October 200 appointed BT as the Administrator until 2^nd October 2003.  BT changed employment and on 1^st March 2002 there was a Review of the order and MQ was appointed as Administration in place of BT.  On 31^st May 2002 there was a further Review and the Public Trustee was appointed in place of MQ.  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 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 Reviews it was determined that the order would remain in place until 1^st October 2006.

3. HXN attended the hearing and was accompanied by a solicitor, KQ.  The Public Trustee was represented by SK.

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

   a.   The Application for Review dated 19^th July 2006

   b.   The Administration Order of 3^rd December 2004 and decision documents

   c.   Health Care Professional Reports from Dr N Barnes dated August 2003, October 2004 and July 2006.

   d.   Reports to the Board from:

   i.Disability Services dated 20^th September 2000

   ii.From the Board’s Senior Investigation and Liaison Officer dated 21^st September 2000, 26^th February 2002, 29^th May 2002, 23^rd September 2003, 24^th March 2004 and 24^th November 2004.

   e.   Administrator’s Reports dated 22^nd October 2004, 24^th November 2004, 13^th September 2005, 24the October 2005 and 27the July 2006

5. The decision of the Board is that the Public Trustee continue as the represented person’s Administrator and that the order be reviewed in six months.  There is a further order that the Administrator is to pay any outstanding accounts including any fees and charges due to The public Trustee and then arrange for the represented person’s pension to be paid directly to him.  The order is to remain in effect to 14^th September 2006.

6. 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”).

7. The Health Care Professional Report provided by Dr Nicholas Barnes confirmed that HXN has an intellectual disability which is a static nature and which has been evident on a long term basis.  This aspect of the report is consistent with previous Health Care Professional Reports prepared in respect of HXN and the Board is satisfied that HXN has a disability.

8. In relation to whether HXN is unable by reason of the disability to make reasonable judgements in respect of his financial affairs and whether there is a need for an order, the Board considered the information provided to it by the Public Trustee and HXN in relation to his financial situation since the making of the order, and more particularly since the last review of the order, and also the most recent Health Care Professional Report.

9. The Public Trustee advised the Board that HXN had indicated his wish to be more independent and it had been agreed between the Public Trustee and HXN that he could have Aurora and his mobile phone on a pay-as-you-go basis, and that his allowance would be increased to $300 per fortnight payable in two instalments of $150 each.  SK also advised that HXN had purchased a second hand car for $1200.00 without the knowledge of the Public Trustee.  The Public Trustee has made arrangements for insurance in respect of the vehicle.  There was still $700 outstanding in respect of that car.  SK also advised that HXN comes in to the office every week or fortnight to ask for extra money for things such as Aurora.  He advised that he has not been giving HXN any additional money because it has not been available.  Money had been made available for HXN to obtain dentures but that was refunded when HXN decided not to go ahead with the purchase.  The refunded money was used for driving lessons.  HXN currently has a learner’s licence and has a friend who accompanies him when he is driving.  It was SK’s view that there had been no change in HXN’s circumstances and his attitude and ability were unchanged.

10. The information in the current Health Care Professional Report varies in some respects from that contained in previous Reports from Dr Barnes.  In answer to the question “Do you have any other observations or comments that may be relevant?” Dr Barnes noted, “HXN has expressed a desire to manage his own affairs.  He states he is debt free and is no longer subject to the influence of others.  Perhaps he should be given a trial to demonstrate this”.  In relation to the information regarding the extent to which HXN is capable of handling his finances and understanding the consequences of financial decisions, Dr Barnes has in large part included information provided to him by HXN, rather than providing an independent objective assessment of his opinion of HXN’s capacity e.g. in answer to the question relating to capacity to operate a bank account the answer given is “He has a bank account”.  As to the extent that HXN is capable of managing all or part of his money or budgeting, the answer given is “Discussion suggests he does”.  The final comment states, “Appears to have a change of understanding re payment of bills”.

11. The Board notes that Dr Barnes indicated that HXN was ‘sometimes’ susceptible to undue influence.  He also noted that HXN could ‘sometimes’ make reasonable plans and follow them through, and could ‘sometimes’ reliably determine cause and effect relationships.

12. HXN indicated that he pays his own Aurora account and mobile account on pay-as-you-go basis and that he purchases his own groceries from money allocated to him by the Public Trustee.  He disputed that he goes in to the public Trustee to ask for money and said he has not been in for about 2 months.  SK advised the Board that HXN had been in the day before the hearing.

13. In relation to the car, HXN agreed that he had purchased the car, and acknowledged that he had paid too much for it, given that the car was unroadworthy and the tyres were no good.  He said he had also had to pay a lot of money for other maintenance on the car.  He paid $300 up front and further payments of $100 per fortnight, and said he did not intent to pay the balance outstanding of $500.

14. HXN stated that he did not need any Administrator.  He expressed the view that he was capable of managing his own affairs now and said he had “learnt his lesson”.  He said he did not get on with SK and did not need the Public Trustee involved.

15. The conclusion of the Board in relation to the effect of the represented person’s disability on his ability to manage his financial affairs was that, although HXN had been provided with an opportunity to exercise more autonomy in relation to some aspects of his finances e.g. pay-as-you-go Aurora and mobile phone accounts and had demonstrated an improvement in some regards, he had continued to demonstrate an inability to manage on a day to day basis e.g. going in to the Public Trust office frequently seeking further monies.  He had also shown that he was susceptible to undue influence by others e.g. the purchase of the unroadworthy car at an inflated price.

16. HXN had expressed very strong wishes to the Board not to have an Administrator and, asking into account the provisions of section 51(4), the Board’s decision is that the least restrictive alternative would be that the order remain in place with the Public Trustee as the Administrator but with the whole of the pension income being paid direct to HXN. This order enables the Administrator to ensure that any outstanding accounts are paid, and to retain the balance of HXN’s funds under its control. It also gives the Administrator the power to oversee the bank account from time to time should that be necessary. At the same time it enables HXN to demonstrate whether he now has the capacity to manage his own financial affairs on a day to day basis.

17. The order provides for the review of the order in six months to enable the Board to determine whether the order should then be varied or revoked.  However, it was stated at the conclusion of the hearing that a review could be sought by either the Public Trustee or HXN prior to the six month review date if either party felt the matter needed to be reconsidered prior to the six month review date.

Dated the 1^st November 2006

Melanie Bartlett
Chairman