KDI (Administration)
[2009] TASGAB 17
•5 March 2009
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
KDI, review of Administration on the application of the Public Trustee, the Administrator.
Neutral Citation: KDI (Administration) [2009] TASGAB 17
REASONS FOR DECISION
Catherine Wilding (Chair)
Gerard Dibley (Member)
Paul Mayne (Member)
Date of Hearing: 7 November 2008 (adjourned) to 16 January 2009
Review of Administration – effect of disability on ability to make reasonable decisions. Guardianship and Administration Act 1995 (Tas), ss 3,6, 51.
The Public Trustee, in its annual report to the Guardianship and Administration Board dated 20 October 2008 set out the history in this matter as paraphrased (in part) below:
“KDI is a 25 year old woman who sustained an acquired brain injury in a motor vehicle accident when she was 16 years of age. KDI remained living with her mother and siblings until 22yrs of age. KDI had three children whilst living with her mother and subsequent to moving into independent accommodation with her children, had a fourth child.
KDI currently lives in rented accommodation with her four children and has full parental responsibilities for them. There is no input from the fathers.
KDI has never been in formal paid employment nor has she ever qualified for a licence to drive a motor vehicle. Her ability to do so in the future is questionable and she may need to undergo additional medical tests to assess this ability.
In 2005 the Public Trustee was appointed as Administrator for KDI following application by her mother DI with a proposal that the Public Trustee be appointed to manage a settlement fund from MAIB. The initial order was limited to the conduct of legal proceedings and the management of Centrelink payments.
An initial interim payment of $25,000 was received from MAIB in August 2006.
In October a further hearing before the Board broadened the powers of the Public Trustee, extending their authority to use the funds from the MAIB interim payment in accordance with previous undertakings given. Essentially expenditure was to be confined to childcare and other expenses related to the children which included the cost of transports. The pension remained within KDI’s control.
Substantial arrears of childcare fees were paid and modifications made to the rental property to ensure safety of the children.
In May 2007, an agreed settlement was negotiated with MAIB, resulting in KDI receiving a net amount of $265,279.11 paid to the Public Trustee in accordance with the Order.
Since appointment the Public Trustee has been working with KDI to investigate the possibility of being in a position to purchase a house for her and her children.
The Public Trustee takes the view that KDI is not in a position to make a property purchase.”
The Public Trustee’s view is that, although they say they have seen some slight improvement in KDI’s ability to rationalise day to day issues, she continues to need an Administrator. The Board notes that, in previous hearings before the Board, as early as 2005, there has been discussion about the possibility of the Public Trustee purchasing a property for KDI.
A hearing was convened on 7th November 2008. The following people attended the hearing:
KDI, Represented person
DI, KDI’s mother
SI, DI’s husband
Mr D. Harnwell, KDI’s advocate, Speak Out Advocacy
Mr J.Clifford, the Public Trustee
Mr L. Perry, Staff member GAB (observing)
Disability and Incapacity - Section 51(1)(a) and (b).
A standard form Health Care Professional Report dated 28 August 2008 and completed by KDI’s long-term General Practitioner, Dr D.R. Ridgers, accompanied the application. Dr Ridgers sent a further letter dated 16 October 2008 stating that he believed that
“it is apparent that we have limited observational basis with which to form an accurate opinion with regard to KDI’s level of cognitive function. If the trustees feel a more detailed approach is needed it would be appropriate to pursue formal neuropsychiatric assessment in this regard.”
Dr Ridgers detailed that KDI had a disability which was an acquired brain injury resulting from a motor vehicle accident in 1999. Dr Ridgers’ answer to the question: “to what extent is the person capable of making reasonable decisions in relation to his or her real or personal property? (e.g. a decision to buy or sell real estate)” answered “Any lack of ability to perform these tasks is not immediately obvious to me.”
Dr Ridgers went on to detail the extent to which KDI is capable of handling her finances and of understanding the consequences of financial decisions in relation to operating a bank account, commenting: “probably safe, provided withdrawal limit placed.” With respect to paying bills, Dr Ridgers stated “hopefully better than doctor’s appointments” and said in his report that KDI is fully aware of the consequences of not paying her bills.
Dr Ridgers reported that, despite KDI’s disability, she can reliably make reasonable plans and follow them through, and she can reliably determine cause and effect relationships, detailing an improvement in this regard. He indicated that she is not prone to impulsive acts nor is KDI susceptible to undue influence by others.
Because Dr Ridgers recommended a neuropsychiatric assessment of KDI, the Board adjourned the hearing from the 7th November 2008 for the purposes of obtaining this report.
The Board appointed the Public Trustee to continue as the Administrator of KDI’s estate during the period of the adjournment.
On the 16th January 2009 the Board reconvened, consisting of Ms C. Wilding, Mr G. Dibley and Mr P. Mayne.
On 16th January 2009 the Board received and considered the report of Dr John Fourez, Consultant Neuropsychologist, dated 30th November 2008. Dr Fourez concluded:
“In my opinion, KDI is competent to make conceptual decisions about such matters as whether she wishes to purchase a house. I am also of the view that KDI demonstrates sufficient knowledge of her current income and debt levels, as well as her obligation to cater for her children.”
Dr Fourez continued to say:
“I do not however believe that she has the requisite knowledge and skills to independently undertake a proper cost analysis of her proposed real estate transaction, so that she requires unbiased external support with this … I believe that she also needs to be given detailed and accurate facts about the budgetary implications of her intended purchase and their impact on her family’s lifestyle … She also needs to be presented with alternative investment choices that could in the medium term increase the ease with which she could enter into real estate.
With proper education, I am of the view that KDI is capable of making an informed decision about the feasibility of purchasing a home. The organization of such educational input is I believe an important function of the Public Trustee and might not take place in its absence. I believe that KDI requires ongoing structure and support with budgeting and bill paying.”
The Board acknowledges that Dr Fourez’s report also reveals that KDI has some memory difficulties, tires easily and lacks some environmental experiences due to her disability. However, the weight of the opinion supported a finding that KDI has capacity to make reasonable decisions.
Section 51 of the Act provides:
“51. Administration orders
(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) …”
The Board, when considering the question of whether or not KDI is unable by reason of her disability to make reasonable judgements in respect of matters relating to all or any part of her estate, applied Dr Fourez’s report and also the report of Dr Ridgers, in order to answer this question. The Board found that, relying upon the evidence of Dr Fourez’s and Dr Ridgers opinion, KDI did indeed have the capacity to make reasonable judgements in respect of her estate, albeit with ongoing support and education. The Board’s view is that a need for ongoing education and support which would provide KDI with knowledge and skills, is different from a fundamental incapacity to make reasonable judgements. The Board considered that it is often necessary for people, not lacking capacity in the current sense, to seek professional advice to assist them in making decisions of the type that KDI is wanting to make. In fact it is prudent to do so.
The Board also received evidence was that KDI has made substantial improvements in all areas since her accident in 1999. Indeed KDI expressed that her wish was to take full control of the financial side of her life, and she stated that she would seek support, for example, legal advice to assist when making technical decisions.
The Board was convinced that it would not be in KDI’s best interests to continue the Administration Order. Section 51(3) of the Act prevented the Board from doing so. Specifically, this section provides that:
“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.”
Further, Section 6 of the Act which sets out the principles to be observed provides as follows:
“A function or power conferred, or duty imposed, by this Act is to be performed so that –
(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.”
The Board was firmly of the view that giving KDI the opportunity to make financial decisions for herself and her family and seeking and obtaining financial advice and education would be the final step in her rehabilitation post accident. A continuation of the Public Trustee’s appointment as administrator (albeit limited under the Order and by circumstance since the litigation had been finalized), prevented KDI from taking full control over her financial life. Significantly, on the face of the evidence before the Board, KDI appeared to be competent with activities of daily living.
The Board was heartened by the fact that KDI had come “full circle” from requiring an administrator to recovering sufficiently to take full control over her financial decisions. Ultimately, the Board was not satisfied that KDI meets the criteria for appointment of an administrator, as the Board was not satisfied that she lacks the capacity to make reasonable decisions about her estate by reason of her disability and as a result is no longer in need of an administrator.
Conclusion:
THE BOARD ORDERS
That the order be revoked.
Catherine Wilding Gerard Dibley Paul Mayne
DIVISION CHAIR BOARD MEMBER BOARD MEMBER
Reasons delivered: 5 March 2009
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